Legal Eye: how to lessen the impact of divorce on children
Mediation and collaboration benefit children during divorce
It's not news that divorce and the legal process of separation have a negative impact on children. In recent years, as this has become more apparent, courts and governments in many parts of the world have attempted to minimise the knock-on effects for youngsters.
In Hong Kong, the welfare and best interest of the children in divorce is of paramount importance. This is enshrined in statute and is where judges will start when they look at a divorce case involving children.
There is nothing to stop the parties from continuing the process privately
It is also a fact that if conflict in a case can be minimised, the impact on the parties and the children will also be reduced.
This has led to an increase in mediation - both outside the court process and within it - and the newer concept of collaborative practice. Initially, both mediation and collaborative practice focus on what can be agreed between the parties. The problem with traditional litigation is that it tends to focus the minds of the parties on what they do not agree on and consequently each takes a position. It is a different mindset.
If you start with the positive, the items which the parties find it hard to agree on tend to look less important. Both sides look more reasonable from the outset and a different atmosphere is established.
Nothing provokes an argument more than starting litigation with an aggressive divorce petition, and perhaps an injunction.