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 other options:
Mediation and Collaborative Law are often referred to as forms of alternative dispute resolution (“ADR”).
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.
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.
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. Mediation and collaborative law seek to overcome this.
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.
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This is an outline of the law, practice and procedure in England and Wales. It should not be taken as specific advice. All families and couples are different. The law may have changed since this was written and we therefore accept no liability for inaccuracies. Where examples are given, your personal circumstances may vary slightly, but the difference may be significant for the outcome of the legal process. Contact us for specific advice on your own circumstances.
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