Berwins In The News

21st Jan 2018

Leading family law expert warns against rushing to court

As family mediators across the UK come together to mark Family Mediation Week, Eminent Practitioner in Family law Sarah Smith is leading calls for those considering separation to understand the importance of mediation as an option. 

Sarah, who is a mediator and a senior solicitor at Harrogate based law firm Berwins, has highlighted that, despite the Government encouraging families to access Mediation by making it obligatory to attend a MIAM (Mediation Information and Assessment Meeting) before going to court, tens of thousands of families are still using the battleground of the court-room to play out their divorce and separation drama.  This comes not just at a high financial cost, but also has an impact on their own and their children’s mental health.

Concerns over the impact on children

CAFCASS (the public body which represents children in the family courts) revealed that 30% of the cases it was involved with – typically concerning issues such as where children should live or when they should see the other parent – had been to court before (data from 2016 – 2017). The majority returned within two years.  Almost a third had been to court at least twice before.

Responding to the CAFCASS findings, Sarah Smith said “These figures make grim reading.  Clearly, the court-based route is not producing lasting solutions if people have to keep returning. That’s one of the reasons why Mediators and Collaborative practitioners believe that the approach they take offers clients a real resolution and is reflected by the fact that these ways of moving forward have become popular, mainstream options and are certainly not just alternatives to court battles.”

“At Berwins, we are proud that 85% of our family law cases never go to court – largely a result of our focus on collaborative law and mediation. Litigation can go on for years, cost thousands and be physically and emotionally traumatic. Mediation and collaborative law is generally far quicker and less painful.  Where our clients are involved in finding their solutions for their family, it is much more likely to work into the future.”

Holding constructive discussions

The situation is typified by the case of Robert Higgs – a trainee mediator who has released his own experiences to the Family Mediation Association to help explain the issues during the association’s awareness week.

Higgs represented himself in court against his partner who was trying to stop him from seeing their son. He remained calm and tried to encourage mediation, but the stress of this situation led to severe health problems for him, for his partner and very sadly their son began to self-harm as the consequence of the parental conflict. Finally both parents attended a mediation session, which resulted in a positive agreement regarding access to their son.

Reflecting on the case, Sarah Smith added “What makes me sad reading this is that many people’s situations are like Robert Higgs.  They either don’t know about mediation or think they have to go to court as otherwise they won’t get what they are ‘entitled to’.  Where children are concerned, the courts want parents to continue being parents and court should be a last resort.”

“Other less confrontational means of resolving matters is clearly a better option. This could mean talking and agreeing matters through mediation or using collaborative family law practice (with legal representation but without financially and emotionally costly litigation).  Mediation also offers options of direct consultation with the children to include their view.  Collaborative law offers the opportunity to work alongside coaches and counsellors as well as legal advisors.”

“Ultimately, no two cases are alike and it’s important that people know their options when a relationship has come to an end.   Getting the right support around you is so important, as is finding the forum that works best for you rather than rushing to court.  Discussing this with a family law specialist can be the first step to making an informed plan to move forwards.”    

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