Many couples cite poor communication as being a key factor in their divorce or separation. How many times have you heard, “She wouldn’t listen” or “He couldn’t communicate”? The sadness lies in the fact that what we mean is often not what we actually say; and what we say is often heard in another way altogether by the other. We each bring to each individual relationship our own set of filters through which we listen. We can make wild assumptions about the responses we receive as we try and make sense of our feelings. Depending on our levels of self awareness, we may or may not have a sense of what’s going on. We may just be left with a continual feeling of not being heard and of not being able to get our message across which results in frustration and resentment. It’s easy to see how misunderstandings then become commonplace and in the end, a couple argue more and more or drift apart and separate.
At times of high conflict, couples have a tendency to take up polarised positions where communication is less likely to be moderated. The flavour of communication becomes more about “I’m right, you’re wrong – you just don’t get it!” Listening can often go right out the window as they battle to get their point across. These battles can go on for a very long time, well beyond the decree absolute with untold damage to the family’s wellbeing.
So why is communication so important once a couple have split up, surely that’s the problem solved? For the very reason that it’s arguably even more crucial that you communicate well with your ex spouse post divorce rather than pre-separation in order to function well as co-parents. Without good communication, you will merely repeat the dysfunctional patterns and dynamics that are probably pretty well entrenched by now and perhaps one of the key reasons for your separation.
When a couple separate, understandably there is often a powerful mix of emotions including hurt, sadness, rejection, betrayal, misunderstanding, jealousy, denial, anger and more besides. When we experience these difficult feelings, our natural response is to take up a defensive position that involves attacking the other, either explicitly or implicitly. It rarely involves saying what we think or how we feel but tends to focus on what the other has done or not done. More often than not, we’re not even aware of how we’re acting but good communication can minimise the detrimental impact that this kind of behaviour has on the whole family. It can be very hard to do things differently which is why support from family, friends or professionals can really help. Others can listen and help us find alternative ways of communicating.
Good communication becomes easier if you are able to think of your ex-spouse like you would a business partner (as a co-parent) rather than as ex-partners. Although you might be separated, if you have children, you will need to communicate for years to come – whether that’s discussing children’s arrangements, making decisions together or simply attending parents’ meetings or family celebrations. The more openly you are able to talk, the easier it will be to make tough decisions, to negotiate issues on which you disagree and most importantly, to mutually support your family in the future. Good communication models something very powerful to children and makes it much harder for them to take sides or play one parent off against the other.
If we communicate honestly and openly, we are far less likely to blame, point fingers or engage in manipulative behaviour. The upside is that good communication also aids understanding, helps us feel heard and can leave us and the other person feeling much better.
The Child Arbitration scheme launched in July 2016 covers all private law Children Act Disputes between parents, parents and grandparents, cases where a party lacks capacity under the Mental Health Act, medical treatment cases of a life threatening nature, applications for injunctions, applications to commit someone to prison, cases involving parents who are minors and cases where a child needs separate legal representation.
Arbitration is a more informal process than that of a court. The parties decide when and where the hearing will take place. They also choose the arbitrator themselves.
The parties can choose arbitration from the start of the dispute or part way through court proceedings and a referral can be made at the dispute resolution appointment hearing. Arbitration is binding on the parties involved.
The parties or their legal advisers refer the matter to arbitration by completing form ARB1CS which is sent to the Institute of Family Arbitrators. An arbitrator is appointed and the first hearing known as a planning meeting is set up. Following the arbitration which usually lasts up to a day a written determination will be given the terms of which are incorporated into a consent order which is then sent to the court for approval by a judge in the usual way. It will only be in the rarest of cases appropriate for a judge to do anything other than approve the order. An appeal against the decision of the arbitrator is only possible on a matter of law or a serious irregularity in the way the arbitration has been conducted.
Arbitration is a more informal process than that of a court.
The process from start to finish will take less time than court proceedings and the lengthy delays with court listing are avoided.
The cost of arbitration is cheaper as arbitrators often charge fixed fees. Arbitration is less stressful as it is likely to be resolved in one hearing and can sometimes be dealt decided on documents alone.
With the proposed court closures and a court system which is overburdened arbitration can be a cost effective, less stressful and quicker way to resolve children disputes between the parties.
On Tuesday 22nd November, as part of “Good Divorce Week, members of the Cambridge Dispute Resolution Group met at their annual Dispute Resolution conference.
They heard firstly about child arbitration from Charles Hale QC and local lawyer Simon Bethel who have both been trained as children law arbitrators. They were able to provide an explanation of what arbitration can do and what it can’t and how it is to deal with safeguarding issues. It will have a not insignificant cost but the advantage of privacy, determination of the issues placed before the arbitrator and speed may well outweigh this.
In our second session, we had the privilege of hearing from John who had used the collaborative law process to deal with his divorce and financial matters some 3 years ago. The two lawyers involved in John’s case and the family consultant were also part of the panel and after some pre-prepared Q&A’s, John accepted questions from the floor. It was fascinating for lawyers and mediators present to hear from a client’s perspective and John was also able look back on where he is now as a result of dealing with the divorce through the collaborative law process. We were very grateful to John for sharing with us in such an honest way.
John’s final conclusion was that he was 70% likely to recommend collaborative law to someone else in the same position!