The adversarial illusion

The adversarial illusionThe adversarial illusion.  What do I mean by that?  The English Legal System is known as an “adversarial system” as opposed to the inquisitorial systems used in many European countries and elsewhere.

Wikipedia defines the phrase as:  A legal system used in the common law countries where two advocates represent their parties’ positions before an impartial person or group of people, usually a jury or judge, who attempt to determine the truth of the case. In other words, two people (along with their solicitors, barristers and maybe a clerk or two) face off against each other in court, each attempting to convince the judge that their view of the world is the right one.

It is my opinion that the term “adversarial” when applied to family law, is not only a misnomer, it is downright misleading. This is not what happens in family courts. Judges do not attempt to determine the truth of your case. The fact is, they don’t really care about whether or not your partner lied to you about not having an affair, that at some point in the past you both agreed that she would never touch your pension or that he promised you would never have to work again until the day you die.

Truth, in the context of a judge determining, and then dishing out justice, is just not what family court is about. Judges can only really look at what there is available in the family asset pot, then consider what you both claim to be your needs going forward and decide how best to divide it to attempt to meet those needs. If there is any judgment going on at all, it will be about how well your £1000.00 a day barrister argues your case for what it is you need and why you need it, and whether the judge believes what you say in the witness box about what you need.

The problem with this adversarial illusion is that, not only is there no punishment for how your ex has behaved, it costs the average couple £44,000 to get this judgement – a cost that has tends rather to wipe out the money that people were fighting over in the first place. By contrast, a mediated settlement with New Landscape Mediation costs an average of £975.00 each, including a document describing your settlement that can be made into a legally binding court order.

Find out more about how mediation can save you from up to 2 years of legal wrangling and £44,000 of adversarial illusion by contacting our offices on 01279 211 657.

Johnathan Pease
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