Divorce is an invariably painful and costly business which usually leaves both sides feeling they've had the raw end of the deal. Liz Yates, from the family mediationservice in birmingham, explains why there are ways to make parting less painful.
There will be 150,000 divorces in England and Wales this year with over half of those couples having at least one child under 16.
Taking the case to court could easily amount to legal fees in the region of #25,000, that's 15 per cent of the average matrimonial assets.
The legal team for the McCartneys might be charging their clients #500 an hour but this is unlikely to leave such a large dent in Sir Paul's reputed #500 million fortune.
While the emotional costs of divorce are common to everyone the financial ones are not. Although Sir Paul McCartney may feel pain if he has to part with half of his fortune in a settlement, he is unlikely to have to sell his family home to meet his costs.
Anthony Julius, Lady McCartney's solicitor, has a reputation for being adversarial and we're gearing up for a very public battle. Sadly this reinforces the expectation that divorce has to have two sides, a winner and a loser, and that it will all cost a lot of money. What we don't hear is that drawn out legal proceedings and court battles also often leave neither side feeling satisfied with the outcome. It might have ruined them financially and destroyed the last remains of trust and co-operation in their relationship. For childless couples this is bad enough, but for the 130,000 children whose parents divorced in 2005 it's tragic.
The Government has made a commitment to help couples find other ways to solve disputes rather than the traditional court route but has backed off from introducing compulsory mediation. Earlier this year the Parliamentary Select Committee on Constitutional Affairs recommended that the Government should reconsider its stance. For several years people who apply for legal aid have had to consider attending an information session with a family mediator. Increasingly the question is being asked why this is only necessary for part of the population.
Many other parts of the world would be surprised at the UK's reluctance to explore compulsory mediation. Experts consider the reform of our family justice system to be ten to 15 years behind some countries. Most states in the US have rules on attending family mediation and by 2008 all parents in Australia wishing to take a parenting dispute to court will be required to first attend compulsory dispute resolution. Already, for both child and financial cases, there is an expectation that couples will first try out of court dispute resolution. Norway has had a compulsory mediation scheme since the early 90s requiring all parents with children under 16 to attend.
There is an understandable frustration amongst family mediators in getting the message out about the help available. Most people who attend an initial appointment at a mediation service want to carry on, the difficulty tends to be getting them there in the first place.
Take Andy and Karen, who separated just under six months ago. Karen's low income means she will be eligible for legal aid and her solicitor has to refer her to family mediation before she can apply for funding. Andy is paying his own legal costs and doesn't even have to consider the possibility of family mediation. Of course he may have an enlightened solicitor who encourages him to try, although with well under ten per cent of divorcing couples accessing family mediation this seems unlikely.
A closer look at Karen and Andy's situation shows why it is so important to change our expectations about what happens when couples separate and divorce. Their sons Sam and Jake are both under ten. They've got a mortgage, a small personal loan and a couple of thousand on their credit cards, they have no savings. Karen works 16 hours a week but doesn't earn enough to cover the extra child care payments if she increased her hours. Andy's moved back in with his parents because he can't afford a place of his own and pay the mortgage on the family home. They're finding it incredibly difficult to talk to each other, they're both worried about money and how they're going to manage in the future and they always seem to end up arguing about arrangements for the boys.
An experienced family mediator will help them to make arrangements for their sons and improve communication so they can solve problems themselves. With the mediator's help they will also build a detailed picture of their finances so that they can make an informed decision about how to divide things. Karen and Andy should still take legal advice on what they decide to do, but working with the mediation service they will have done much of the work they might otherwise have paid their solicitors for. They will have a good understanding of how they came to their decision and the needs of each other and their children. More importantly the decisions they make will be their own, not imposed by a court.
Of course family mediation is no panacea, there's no guarantee that working with a family mediator would prevent Karen and Andy ending up as one of the 30 per cent of couples forced to sell the family home when they divorce. It would however ensure that the best part of their financial resources stayed with them and provided as much security for their family as possible. Couples work hard to achieve a good outcome in mediation and it's no easy thing for people to make decisions on the practical issues at the same time as dealing with often very raw emotions.
Who should decide what happens when a family splits? Surely when in all other aspects of life we fight for our freedom of choice, couples need to be reminded that when they separate or divorce they still have the right to make the decisions for their family. Introducing compulsory mediation isn't about nannying or forcing people to reach agreement. Offering affordable costs, a greater understanding of their family's needs and an improved relationship with each other most couples stand to gain from the opportunity to mediate, even the McCartney's might benefit.
* Mediation Awareness Week runs until this Friday. For information about mediation contact Birmingham District Family Mediation on 0121 233 1999 or email enquries@family mediationbirmingham.co.uk ..SUPL:
