In a MIAM recently I said to a client that there is no right way to resolve things, but there could be a wrong way. That didn’t come out as I had intended but it has made me think!
As a mediator, I tend to think mediation can help a lot of clients, but I am fully aware that for many it isn’t the right thing to try at that time (and may never be). For some clients, a collaborative approach by lawyers would give them the advice and support needed to find solutions together. Having a neutral view of what is likely to happen from ENE or a PFDR can be what is needed for others. Sometimes, having a swift decision made for the clients can be the right option and Arbitration comes into its own!
So, when is court the right option? The court process can take such a long time and the costs can be wholly disproportionate to the outcome. Could the need for an outcome with a spouse/parent who will not negotiate or is frustrating finding a solution using the other options, mean that court is then the only option?
Being able to provide a MIAM certificate whilst NCDR is underway does try to fix that issue, keeping the option of NCDR alive whilst the court timetable avoids things drifting. But do clients then really understand the benefit of maximising that opportunity to resolve things before the court timetable catches up with them? Does the court timetable then become the focus rather than avoiding it? Do we as family law professionals do all we can to make the NCDR options feel attractive enough to justify clients committing their time, energy and money to it, instead of saving it back for court?
When explaining NCDR options in MIAMs I am always shocked that clients have heard of so few of them. They know their solicitors have told them they need to go to court and so have booked a MIAM. Clients therefore believe the options are lawyers negotiating by letter, mediation or court. If, for often valid reasons, clients do not want to mediate or do not feel it would be appropriate, they have already concluded that they need to go to court. When I go through some of the other options they wonder why these haven’t been offered. It may be for good reason that some of the other NCDR methods haven’t been explored, but clients can feel shortchanged if I am the first person to mention these options to them.
There is no one size fits all solution for clients. Reminding ourselves of that and reflecting on how NCDR has developed and different ways it can be used, is something we need to keep at the forefront of our minds and ensure our clients can feel fully informed about so that their choices are the best ones for them in the circumstances they are in.
What do you think? Is court still the best place for most clients to be? Is there another NCDR option that can tick the box?
Is there a better way?
Claire Colbert
