Conflict and divorce: ways of resolving a dispute

By 26 September 2012collaborative law, FAQ, Mediation

Resolution, the association of family law solicitors which is committed to non-confrontational methods of resolving family disputes and to which all of us here at CFLP belong, is promoting “Family Dispute Resolution Week” this week. The ambition, which we at CFLP share, is to raise awareness of non-court based ways of working things through when relationships break down.

We’ve blogged before about mediation, arbitration, and collaborative law, and we’re passionate advocates for non-court processes in appropriate circumstances –take a look at our “how we do it” page for downloadable factsheets on all the options available. Although non-court methods are sadly not right for absolutely everybody – for example, they can only operate where both people are committed to a non-court process, and where there are no power issues which are not capable of rebalancing – there is no question that they are usually less disruptive, traumatic and expensive than court proceedings. Resolution has produced a great free guide for those who wish to know more about alternatives to court, called “Separating Together”, which is worth a look.

As part of the run-up for this awareness-raising week, Resolution commissioned a survey which had some quite interesting results. According to the survey, 53% of the respondents would prioritise making a divorce as conflict-free as possible, and 40% believe that divorces can never be without conflict – a figure that rises to nearly 47% of those who have been through the divorce process themselves (you can read the full press-release here).

It’s reassuring to see that so many people would wish divorce to be conflict-free, particularly as the effect on children of conflict has been well-documented (for example, see The Cambridge News, where our Adam is quoted, and this more academic study) . However, is it possible for divorce to be completely conflict-free? We see all types of divorce circumstances here at CFLP, and in our experience (both as mediators, collaborative lawyers and traditional legal practitioners) it is very rare that there is absolutely no conflict when a relationship breaks down. Even in circumstances where both adults involved have come to an independent decision that the relationship is over and have a strong desire to move amicably towards new, different, lives it is unusual for them to have exactly the same ideas about what that means in practice, regarding the children or the financial implications.

In a heightened emotional situation, where there are different opinions on important matters, there may well be conflict. The key thing is that any natural conflict is managed constructively and positively, and not repressed so that it bubbles up later – particularly around the children. And this is where non-court solutions may have the advantage. In a court situation on divorce, it can seem that your conflict is all out in the open: you say one thing, he/she says a different thing, and the court makes a decision unless one of you verbally beats the other into submission before. But it isn’t that simple because the court is focusing only on technical legal arguments: in the context of finances, these revolve around needs, sharing and objective fairness, and in the context of children, it’s all about what the court will perceive to be in their best interests. Inevitably, these narrow guidelines about what you can and can’t argue about are more likely to lead two people into increasingly polarised positions, which are more likely to spill out of the court process into everyday life and increase bad-feeling and destroy channels of communication, than they are to assist you in moving towards making things better in the future.

In a mediation or collaborative law situation, the two of you set the agenda and decide what is relevant to sorting out your dispute. You can of course be guided by lawyers in this respect, but it’s really down to the two of you to work out what your view of fairness is, or what’s right for your kids, and what’s important. There’s scope to talk about whatever needs to be talked about, and while non-court dispute resolution is not therapy and should never be confused with it, the ability to express differences of opinion in the presence of people trained to handle conflict positively may be transformative. Many people are cynical about the ability of lawyers to manage these interpersonal issues, but we at CFLP, together with our mediator and collaborative colleagues around the country and around the world, have gone through extended periods of training, and have acquired many hours of experience in these techniques. We’re really good at it, and we wouldn’t do it if we weren’t: the stakes are simply too high. We’re aware of our responsibilities when people trust us to help them work out their families’ futures, and we take them very seriously indeed. The results – a sense of closure, a problem solved together, and improved communication for the future – speak for themselves.

So it may not be possible to have a completely conflict-free divorce, but you can at least choose to minimise the conflict or give yourself an opportunity to harness it as a force for good. Non-court solutions should be the first choice for all those who can use them: for the sake of the children, and for the sake of your futures. For more information or to chat about any of the matters covered in this blog, do give Adam, Gail, Simon, or Sue a call on 01223 443333.

 

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