Why going to court should be the last resort

Court should be a last resort

This may seem like an unusual stance to adopt on this blog, but the more work I do with clients (and thinking back to my own experiences during the many years I was a litigant in person, representing myself in court), the more this makes sense for family disputes involving children or money.

It is a topic that deserves some discussion, as the number of cases being started in the family courts in England and Wales continues to rise (according to the most recent figures produced by the Ministry of Justice, for the period July to September 2019).

Options to consider

Agreements between you and the other party

This option may be possible if you are both willing to (try to) communicate with each other and are willing to work together so that you can come to an arrangement that is mutually beneficial.

Agreements as to the form of communication

If communication between both of you is possible, agree on the best form of communication.  For example, it may be that email, via a dedicated email address works best, or using text messages.  Whichever form of communication you agree to use, some ground rules around what is said and how can be helpful.  Other ground rules to explore, for example, are an expectation that emails will be responded to within 24 hours, emails will be sent during the daytime only, with only truly urgent matters being communicated by text or by phone. 

Agreements via an intermediary

This option involves communication through another person, a third party and is an option in cases where there has been acrimony or where there is an existing order the prevents direct contact (such as a restraining order or non-molestation order forbids).  The third party is an agreed point of contact and could be a friend or neutral family member, or another trusted person such as a member of the clergy.

The intermediary will be someone you are both prepared to be in contact with so that messages can be passed through that person to each of you.  This option can be used to address specific issues that may need to be discussed.

Mediation & MIAM

Mediation can be a good option, where direct communication or indirect communication (via an intermediary) has broken down. 

The MIAM is the Mediation Information and Assessment Meeting is the first meeting with a mediator.  During the meeting, you will find out more about how mediation including whether it is the right option for you, the number of sessions you may need and the cost. 

Unless you qualify for an exemption (for example where there has been domestic violence or where one party refuses to attend the MIAM), you should attend a MIAM before making an application in relation to children or finances.  You can find the full list of MIAM exemptions (Practice Directions 3A MIAMs)  here.

Things to consider before applying for a court order

If you can reach an agreement, any arrangements you will be in the best position to agree a more flexible arrangement that can be changed as needed, by agreement. 

Court orders

A court order will not necessarily provide the same level of flexibility and carries consequences for the person who has breached it.  A court order may not necessarily bring finality to a case and maybe the start of multiple applications or a cross-application (where one party has made an application and the other party also makes an application while the original matter is going through the courts) over the course of a number of years.

Mediation

Mediation may be a suitable option to explore, provided both of you are prepared to attend.  While this option costs money, costs can be controlled, particularly if you agree with the mediator upfront the number of sessions you will both attend. 

Cost

Cost is perhaps the biggest issue to consider when deciding whether to make an application to the courts.  Typical costs will include, the court fee and the cost of legal representation or the cost of a McKenzie Friend.  Factor in other costs such as travel time, time off work and the time you need to spend preparing for each hearing.

Copyright © Going to Court Alone – Debbie Thomas

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