Nine months on from the excitement surrounding the launch of family law arbitration, and over a year since the government introduced Mediation Information Assessment Meetings, has the alternative dispute resolution cause moved any further forwards?
I asked myself this question following Resolution’s Family Dispute Awareness week at the end of September. Far from triumphantly heralding the appetite for ADR in England and Wales, it was a reminder that the public is either unaware or indifferent to the options available to them outside of the court process.
A survey they conducted showed that 45 per cent of people believe that divorce involves a visit to court. And there were a further two statistics that illustrated just how conflicted and confused opinion is. While 53 per cent were keen on “ensuring that the divorce is as conflict-free as possible”, 40 per cent agreed that “divorces can never be without conflict.”
No ADR bounce
In many ways it would seem that the case for ADR has never been stronger. We are seeing a surge in individuals representing themselves as legal aid dries up, few of whom have any desire to end up in court but that is where they are. In the current economic climate, alternatives to the court process also seem to make financial sense.
And yet it isn’t happening, the bounce into ADR just isn’t there, despite the best efforts of everyone who thinks it is a viable, credible alternative. So why not?
It seems pretty clear that family law practitioners face a huge challenge in building awareness of exactly what ADR and its various strands entail. Mediation and collaborative approaches have been around for years, and while many people are at least aware of some of the advantages, few are keen to take the plunge.
My firm decided to promote mediation and arbitration in October by offering a fixed fee for suitable cases throughout the month – an idea championed by other family law arbitrators this autumn. And while this may help to increase knowledge of the disciplines in certain quarters, from what I have seen so far (and I trained as a mediator back in the 1990s) I think we are all in fact wasting our time. While we try our best to attract clients and the government is making every possible move it can to force couples out of court, what is happening on the ground?
Litigants in person
The courts are flooded with litigants in person, a trend that will only increase when legal aid for most family cases is abandoned from next April. Approximately 200,000 extra litigants in person are expected to make their applications to the court. Apart from a court fee – from which many court goers will be exempt – there is no additional cost. There is immediate and free access to the judiciary, who now have no choice but to put on a brave face and cope. Despite all the alternative methods to resolve disputes and the best efforts of government to wean people off the courts, the public still vote with their feet and head into the courtroom
In doing so I think they are sending out the clearest possible signal to us all. They aren’t impressed by the alternatives. They trust the courts. They have confidence in the outcomes they produce and aren’t interested in quasi-judicial systems, or ‘touchy-feely’ alternatives.
We too perhaps may have been sold a pup. After all, we are first and foremost family lawyers; trained to work within a family justice system, not a system that limps alongside simply because government has determined it should be pushed hard as a cheaper option for the public purse.
We’ve all bought into ADR – I suspect without doing enough research of our own with the people who count. And like it or not we have our answers; a court system in meltdown is proof enough that this is not what people want.