Back to basics with testamentary capacity
Last week Resolution hosted their “Family Dispute Resolution Week”, which was designed to promote alternative dispute resolution (ADR) within family disputes. The aim was to increase awareness of the availability of mediation, collaborative law and arbitration (limited to finances) as options for resolving family law disputes.
If recent survey results carried out by Resolution are anything to go by, there is clear public support (in theory if not in practice) for a system that avoids lengthy, costly and damaging court proceedings when resolving disputes relating to children. A poll carried out by Resolution in August found that 78% of those canvassed felt children should be put at the forefront of decisions following a divorce or separation. It further revealed that 86% of people felt that children were the main “casualties” of divorce. There is, however, a sense that, whilst the public wants to avoid the damaging impact of litigation on families and family life, there is little awareness of the alternatives available.
Following an extensive media campaign last week, Resolution’s Director of Communication concluded that approximately 10 million people may have, in some form, seen or heard about the campaign. A success by any measure.
Why does ADR work so well for children?
For many parents, making decisions about their children after separation is easier if they can find a way to communicate rather than going straight to court. Sitting together with a mediator or with their lawyers in the collaborative law process can work well as it enables them to communicate and prioritise their children’s needs in a meaningful and direct way. Parents may feel more able to articulate their concerns in that context rather than via lawyers in a courtroom. They will probably feel more relaxed and able to discuss issues. In addition, if that process, be it mediation, collaboration or arbitration, enables a family to move forward in a more positive way, the hope is that, as parents, they will have a better working relationship which can only benefit their children in the long term.
The benefits and future of ADR
There is of course a broader message - that court is not the panacea people think and that there are other options which could well be less stressful, less costly and less risky. It is a message which the Government is keen to promote so as to ease the current pressures on court time and resources (as well as the legal aid budget).
At the centre of all forms of ADR is the idea that a negotiated or mediated agreement is more likely to work and “feel better” than one imposed by a court. A sense of being able to control one’s destiny, however much maligned that concept might be, lies at the heart of ADR. Plainly, there are some disputes so intractable that going to court is the only suitable option, but the hope is that those disputes will increasingly be in the minority.
Those keen to promote ADR face the inevitable problem of getting other, perhaps more traditional, lawyers “on board” so that they in turn will promote ADR to clients directly. This is, therefore, a battle for the hearts and minds of the public but also the legal profession. The hope, with such a high profile campaign, is that ADR will increasingly take centre stage.
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