“He has put my brethren far from me … my kinsfolk and my close friends have failed me … I am repulsive to my wife, loathsome to the sons of my own mother.”
These words from the Book of Job are quoted by Pope Francis very near the beginning of Amoris Laetitia (“The Joy of Love”), his exhortation on family life. It is “a bitter truth” that families break down, he says, causing incalculable suffering in the process.
This will not come as news to any lawyer. Most of my colleagues in the legal profession – not just those specialising in divorce law – often hear words very similar to Job’s. Clients sit in their offices explaining that members of their family find them “repulsive” or “loathsome”. They may not be exaggerating.
When I was a solicitor dealing with commercial litigation, I often came up against the savage consequences of family breakdown. They are by no means confined to divorce proceedings or custody battles. Family disputes crop up in the legal system in countless ways. Relatives sue each other all the time. An employer taking a company to court or vice versa; a claim for damages; a libel action; even a quarrel over a planning application – all these may involve parents, children, siblings and cousins who have had recourse to the law.
The Catholic Church has identified many threats to the family – but it doesn’t have much to say about legal disputes. Perhaps it doesn’t want to be seen to interfere in private matters. Yet most parish priests could tell you about the misery inflicted in the courts – or, it might be more accurate to say, the misery that ordinary people inflict on each other using the law as a weapon. And a very powerful weapon it is, too, if you have the skill and the money to use it.
If, on the other hand, you go into litigation not knowing what you are doing, badly advised by friends, family and the wrong solicitor, it can leave you with the most awful self-inflicted wounds. Watching this happen was one of the things that persuaded me to move from civil litigation to the one process that can avert disaster – mediation.
Mediation isn’t a very exciting prospect compared with the thrill of telling your adversary (who, until recently, may have been someone you loved) “I’ll see you in court!” People have a mental image, formed by television dramas, of their counsel wiping the floor with the other side, of hostile witnesses falling apart dramatically under cross-questioning, and of emerging vindicated – and not a little gloating – after a ruling in their favour.
But let me assure you that, most of the time, it isn’t like that, even if you win. Take the example of “contentious probate action” – otherwise known as a disputed will. As we all know, wills have an almost magical ability to sour the atmosphere in previously happy families. And that ability is horribly magnified when the law is dragged in.
As a solicitor, I’ve witnessed some tremendously bloody battles over wills. A typical case might pit siblings against each other after an elderly parent dies. The son or (more likely) daughter who cared for the parent feels they’ve been short-changed. Why hasn’t the will recognised the extra sacrifices they made?
Enter the lawyers. The aggrieved sibling enters a witness statement accusing brothers or sisters of parental neglect, and encourages allies to do the same. The other side hits back. The temptation to exaggerate is enormous. So is the tendency to turn half-remembered details into sworn testimony.
Damaging events going back years are dredged up – and the damage caused can last years into the future. Children suffer. They lose contact with aunts, uncles and other family members. Their parents have less money with which to bring them up.
Hatred and revenge flourish. It is quite common for extended families to cleave in two; members write their siblings out of their own wills and the feud passes to a new generation. So, often, do the financial consequences. Litigation of a disputed will can involve costs of £200,000, and on the basis of the decision of a judge who may be expected to absorb 20 years of family history in a few days. Now compare this to mediation. Employing a mediator will cost about £3,000 plus VAT, the cost of which is divided between parties; if lawyers attend then the total will jump by about £2,000 plus VAT per side.
The process can be tense: this may the first time the parties have met in the same room for months (or even years). But it can be cathartic. Often, seeing a brother or sister cry at the joint meeting helps dissolve rancour and makes reaching a settlement easier.
Huge costs are saved – in my experience, the participants end up spending less than £10,000 compared with a possible £200,000, if the mediation takes place early enough. More important, about 80 per cent of mediations succeed. The family as a whole often survives, bruised but not destroyed.
Unfortunately, this lifeline is not grasped nearly often enough: mediation is a requirement in a contested divorce but not in other disputes that can have an equally corrosive effect on the family.
Here then is an area in which the Catholic Church can offer really practical advice that doesn’t involve taking sides in messy arguments. If the bishops of England and Wales were to encourage parish priests to suggest mediation where a horrible court battle looms, some awful suffering could be avoided and vulnerable people would not be deprived of something that Pope Francis has put at the heart of his mission – the joy of love.
Leszek Werenowski is a bilingual mediator resolving disputes in commerce, employment and property
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