I understand that it is Family Dispute Resolution Week. Organised by family lawyers’ association Resolution, the aim of the ‘awareness-raising’ week is “to highlight the alternatives to court for separating couples and their families”.
That sounds all very well and good, and I’m obviously all for settling family disputes out of court, but surely every week is family dispute resolution week? Contrary to popular opinion, every week of the year family lawyers up and down the country are striving to resolve their clients’ disputes without having to go to court.
Okay, there are some cases that have to go straight to court for a variety of reasons, such as urgent matters. However, leaving those aside, when I was practising I always took the view that it was my primary duty to make every effort to resolve matters out of court, in order to save my client the stress and expense of court proceedings. Of course, the stance taken by the party on the other side did not always make this possible (and I had to follow my client’s instructions), but at least I had done what I could.
And it’s not just about the lawyer’s client, either. To coincide with Family Dispute Resolution Week Resolution have published the unsurprising results of a survey they commissioned. This shows that their parents’ divorce can have a serious adverse impact upon children’s futures. That impact can of course be lessened by minimising the stress and conflict involved in sorting out the divorce.
So, we’re all hopefully agreed that resolving family disputes out of court wherever possible is a good thing. However, whether by design or not the ‘awareness-raising’ initiative seems to me to be putting too much emphasis on alternative dispute resolution (‘ADR’): mediation, collaborative process and arbitration.
Now, those things all have their place, but the simple fact is that the vast majority of cases settled out of court are resolved by negotiation between lawyers, as I explained in this post. The initiative appears to suggest that ADR is superior to negotiation as a method of resolving matters out of court, when in most cases once a client has instructed their solicitor there is no need to resort to an ‘alternative’ method.
If, on the other hand, the point of Family Dispute Resolution Week is to promote all forms of out of court dispute resolution equally, including negotiation, then I really don’t understand it. Surely, apart from the odd dinosaur who still insists upon rushing straight off to court with his client in every case, the vast majority of family lawyers are already not just promoting but actively practising out of court dispute resolution?