Sometimes court proceedings are inevitable. Often they can be avoided. Many people find the prospect of having to appear before a court of law daunting at the best of times; combined with the emotions resulting from separation or disagreements about the upbringing of children, it becomes the last thing most people want.
It is not necessary to go to court and have a judge decide on what should happen when you separate or divorce. There are a range of options:
Often people talk to each other directly. Sometimes this works. However, in situations where people have to restructure their lives after relationship breakdown, the instinct is to be protective of one’s own position. This quite naturally leads to people building up protective walls, which then make it difficult to shift positions later on. This entrenches positions and makes it very difficult for both parties to move. Mediation and collaborative law seek to overcome this.
Negotiations Through Solicitors
Many cases are resolved through negotiations between solicitors. Sometimes this is cost-effective. The main problem is, however, that solicitors are trained in litigation and negotiate very much with the court process in mind, even if no court proceedings have started. This can trigger misunderstandings. Since one solicitor will usually draft a letter to the other, first send it to their client for approval, then, once approved, to the other solicitor, who then sends it to their client for comment, there is some considerable delay built into this system and it can sometimes drag on for weeks without much sign of any progress. Correspondence can be seen as hostile and entrench positions and this process can cost a lot more than mediation. It is best to try to keep the focus on solutions rather than litigation and open up the thinking while keeping your interests in mind. Solicitors who are also mediators may be more focused on solutions rather than on potential litigation.
Although only about 5-10% of financial cases on divorce go all the way to a final hearing and the rest settle earlier in the process, solicitors’ and clients’ mindsets are often focused on litigation outcome and the solutions the court can provide. Negotiations are outcome-based and tend to focus on percentages in the division of the capital and income.
If the focus is on the litigation, there is often no room for lateral thinking to find an alternative solution which may be better for the family. Sometimes litigation is unavoidable, for example if one party is trying to hide assets or is imposing their will on the other. In such cases it is important that your solicitor represents you with specialist expertise without losing sight of the overall costs, which can be considerable.
Mediation is the cheapest and fastest way to resolve all issues arising from relationship breakdown. Both parties meet with a neutral mediator and therefore pay only one professional during the process. Issues are resolved in a series of meetings and typically the mediation can be concluded after a couple of months or so.
The mediator is independent and cannot be a member of either lawyer’s firm. Mediation does not work for everyone, for example if there is a history of bullying or violence. Generally, both partners have to be very committed and function reasonably well. The particular mediator needs to be the right person for the couple and should be chosen carefully.
Mediation often works best if both former partners have supportive advice and guidance from their own solicitors. Mediation can come to a solution that is tailored to you individually rather than imposed by the court.
As in mediation, collaborative law is a process outside the court system. Instead of one neutral mediator, however, both parties have a solicitor each, who together facilitate principled negotiations. This means collaborative law is not as cheap as mediation, but the parties can feel more supported because their own lawyer is there during the process. In collaborative law all issues are discussed in meetings between both parties and both lawyers.
Mediation and Collaborative Law are often referred to as forms of alternative dispute resolution (“ADR”)..
25 May 2016 by Andrea Woelke