Resolving the split of the matrimonial finances or the arrangements for the children are two of the more challenging aspects of a divorce or separation. For most individuals, the thought of attending court and the costs associated with contested hearings is extremely daunting; particularly at such a difficult and emotional time in their lives. The majority of the individuals that we meet with have a pre-conceived assumption that unless they have already reached an agreement regarding the split of the assets or the arrangements for the children, then an application to court is inevitable. This is not necessarily the case. There are other ways in which an agreement can be reached between separating couples and are known by family lawyers as forms of Alternative Dispute Resolution. Set out below is a brief overview of the alternative methods with a link to a more detailed blog providing further information
Mediation has played an important role in dealing with family law disputes for some time now. It is a voluntary process which involves a neutral third party; the Mediator. The Mediator’s role is to encourage and improve communication between the parties, with the aim of helping them to reach an agreement regarding the matters in dispute. Mediation is often seen as a more cost effective way of resolving issues in dispute. Mediation is reliant on both parties engaging in the process and actively listening to each other’s views.
This method involves both parties instructing a collaboratively-trained solicitor and undertaking a number of meetings with both parties and their solicitors present. At the outset, the parties enter into an agreement that they are committed to attempting to resolve the issues in dispute without progressing to court. The collaborative process has similarities to the mediation process, and enables both parties to actively engage in the resolution of the issues in dispute. Unlike mediation, the parties are accompanied at meetings by their solicitor. Whilst this is a more costly method, it is beneficial for parties who wish to engage in a more amicable method of dispute resolution but with the support of their solicitor.
Arbitration is a relatively new form of dispute resolution in family matters. Arbitration is a voluntary process and is usually entered into in cases where the parties have been unable to agree the outcome in dispute. Out of the different methods of dispute resolution, Arbitration is the most similar to court in that the Arbitrators decision will be legally binding on the parties. The process however seeks to avoid the stress, delay and uncertainty that is often associated with court proceedings. The process is often less formal than court proceedings, the parties are able to agree which trained Arbitrator they wish to use and can agree a timetable for progressing the case that suits them. They are able to avoid the need to sit in the waiting room of a daunting court building until their case works its way up the list and appears before the Judge. Given that the parties are not constrained by court availability, a binding final agreement can often be made relatively quickly by the arbitrator.
If none of the above methods are considered suitable or either party refuses to engage with the process, it may still be possible for an agreement to be reached without proceeding to court through correspondence between one or both parties’ solicitors or by a round table meeting. When dealing with financial cases sufficient disclosure would need to be exchanged before negotiations could take place. If an agreement is reached, this can be recorded or where there is a related divorce, a consent order would be signed by both parties and approved by the court.
We would recommend an initial meeting with one of our family lawyers who will ask you about the background to your situation and your priorities. They will consider with you the dynamics in your relationship and the personalities involved and work out with you what approach best suits your situation. For more information about our fixed fee initial meetings please get in touch with our family department.