Direct Mediation Services

Practicing children and family law – an inside view

Do you think you might be entitled for Legal AID?

By Andrew Weeden of McKenzieLawPartners.com

Guest Blogger

My case load is many and varied. Some matters are extremely complex and require surgical skills and dedication to navigate through the myriad of issues while other cases can be resolved without the need to issue court proceedings. There is never a dull moment doing my job and it inspires my passion and enthusiasm for the law and in particular, my specialisms in children and family matters with a strong emphasis on parental alienation and intractable contact disputes.

Unless there are quantifiable reasons not to such as allegations of domestic abuse, child abuse or where the matter is deemed ‘urgent’, parents and parties must generally attempt mediation first. The Ministry of Justice sees this as such an important and necessary step that there is a voucher scheme to help parties fund some or all of the costs. It is less an act of chivalry and all about applying gateway filters to prevent as many cases as possible reaching the extremely overwhelmed and broken family court system.

The most important role I perform in my job is managing my client’s expectations. This is vital. Forget what you think you know, unless you have been through child arrangements or divorce proceedings, you have little idea about how stressful and traumatic going to court can be. I have seen grown men curl up and cry; I have seen mothers who stand up to leave and pass out cold, requiring urgent medical support. If it is possible to avoid going to court, I implore you to take that option. Or at least try mediation or alternative dispute resolution (ADR) before you hire a lawyer.

It will save you potentially thousands of pounds in legal costs.

The success of family mediation depends upon two key ingredients – compromise and trust. The trust part is most important so ask yourself, irrespective of the causes of your relationship breakdown, do you trust your ex-partner to comply with any agreements you make in respect of your children or financial settlements. If you do, there is greater hope for a non-court resolution. Compromise is a bitter pill you might as well swallow now, because if your case does come before the courts, I can guarantee you that the eventual outcome will neither be everything you wanted, or your ex wanted.

The rule I apply is that you will more often come out with more favourable terms and outcomes, than if the family court imposes an outcome upon you. You only need to speak to any other party who has been through the court, and they will confirm that the end outcome was a blend of what both parties wanted – and more importantly, what was needed for the welfare and best interests of the children. Standing on ceremony and being precious about a desired outcome is not going to be your friend.

Family Mediation can take place at any stage, after all, it is a descriptive term for a series of negotiations. Ironically, some of the best mediation comes during the court process, once parties realise that it is in their best interests to narrow as many issues as possible. And let’s not forget that cases going through court take one to two years to complete. That is a lot of your life spent waiting in order that you, your ex and the children can finally move on with your lives.

Let me give you some anonymised examples –

Case 1 – No court required

Mother and father had separated three years before and had been sharing their child’s time well, but things became tricky, bitter words were said, relations broke down and both parents were locked into a battle of wills. Mum wanted to take the matter to court. My advice was that this would be costly, take a long time to resolve, and would leave everyone with the potential of an undesirable outcome that they would then have to live with. That is hardly conducive to happy family life or for the future of the co-parenting relationship. Instead, between ourselves and the other lawyers, we attempted private mediation. This resulted in a framework agreement which to all intents and purposes looked like a final order but was certainly more favourable to the family unit. This ‘reset’ the parents’ relationship with each other and now the parents are amicable, they feel they are equal and most importantly the child sees both parents in what has become a fair and proportionate outcome.

Case 2 – Half mediation/half court

The parties attended a MIAM (mediation information and assessment meeting). This was somewhat productive, but the parties fell out over whether the arrangement should be a joint lives with or a live with/spend time with plan. Proceedings were issued but we took only the remaining issues to the court, not the progress that had been made in narrowing the issues. As a result, less hearings were needed, it was far less contentious and with the help of a welfare section 7 report by Cafcass, recommendations were made which the court subsequently adopted.

Case 3 – Parental alienation

The parties relationship had been toxic for three years before the couple eventually parted. The acrimony continued and nothing could be agreed. One parent raised serious allegations of coercive and controlling behaviour. The other parent made cross-allegations of physical abuse. The allegations had not been tested and there was little to no prospect of any successful outcome through mediation. This kind of case did require the full throttle approach of the family court and it took over two years to conclude. In the end, no findings were made, and the allegations were not proven by either party. But by this time, the mother’s narrative had become her lived experiences and she simply could not find it in her to share her children with the father. Only the court and the child professionals could resolve this kind of intractable contact dispute and, sadly for the mother, the outcome needed was a transfer of residence to the father who then ensured that the children spend regular and quality time with their mum.

Find the right professionals to support you. Your best outcome will depend upon it.

Andrew Weeden is retained by McKenzie Law Partners and a regulated paralegal with a practicing certificate in family law. He is also a member of Resolution.

Talk to one of our approachable and experienced support team at Direct Mediation Services on 0113 468 9593 to find out how we can help you.

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