When a couple decides to separate, there are various choices they can make about the way in which they do so. Normally, there are issues to be agreed over arrangements for the children and finance. Certainly as far as the finances are concerned, it is important to obtain legal advice. However that does not mean the couple has to become automatically locked into an adversarial court process.
The marriage or relationship may be over – but that does not mean that any decisions concerning this family should be automatically delegated to outsiders (lawyers and judges). The couple can still make good decisions for their future, usually with some expert help from outsiders. Just because the relationship has failed does not mean they are incapable of finding the best way forward for them and their children. The question for the couple is: ‘To what extent do we want to hand over decisions concerning our future to outsiders?’
In resolving financial issues arising on separation or divorce, there are various different processes for coming to an agreement. The simplest process, which leaves all the decision-making to the couple, is mediation. The next option is collaborative law. Beyond that, one could instruct solicitors with the hope that they will negotiate an agreement on your behalf before any court hearings. The last option is to hand over your case to lawyers to seek a resolution through the court procedures and, ultimately, have a decision imposed upon you by a judge. Needless to say, this final option is most costly in every respect – in time, in money and in stress.
Mediation
Mediation is when a couple sit together with a professionally trained mediator, and reach their own agreement on any issues they have. A mediator is not a marriage counsellor, in that his or her role is not to try and reconcile the differences in the marriage. Instead, the mediator facilitates discussions between couples to enable them to reach their own agreements on disputed issues. The mediator is not there to advise, but to bring couples to their own agreement.
Mediation works hand in hand with legal advice. The mediator does not represent either of the couple, and is purely there to assist them to come to their own agreement. Having embarked on mediation of financial issues, the mediator will recommend that you obtain your own independent legal advice. Once aware of what the legal advice is, the couple will return to the mediation ready to negotiate an agreement.
There are many reasons why it is better to agree matters through mediators rather than solicitors – not only will it be far less costly in time and money, but it restores the couple’s confidence in their ability to communicate, and to work things out between them. This has a positive effect on the whole family.
Collaborative Law
There are cases where mediation is not appropriate. If one of the couple is much more dominant or aggressive, or if one has very little confidence in his or her own judgement and ability to negotiate a good agreement, then mediation may not be the best process. For those who would prefer to have their advisor present in the negotiations, there is another process available in the UK called Collaborative Law.
The way it works is that the clients both have to choose to instruct their lawyers ‘collaboratively’. This means that the discussions and negotiations take place with the couple and both their solicitors together, in a series of meetings. The solicitors are there to advise their clients and to negotiate with their clients present with the aim of reaching agreement on all matters. However, if the negotiations break down, then the solicitors are not able to refer any contested matter to court, as would happen if they were not acting collaboratively. The clients would have to start again with new lawyers if they wanted to refer their case to court. The disadvantage of this, both in terms of costs and of time wasted, means that there is a huge incentive on both clients to be reasonable in negotiations and tie everything up using the collaborative lawyers, so the success rate of collaborative law is very high.
Collaborative law is ideal for clients who do not have the confidence to come to an agreement themselves and who would prefer to have their solicitor conduct the negotiations on their behalf. It is considerably more expensive and timely than mediation, but infinitely less so than litigation.
The association of family solicitors called ‘Resolution’ can provide details of solicitors practicing in collaborative law in your area. www.resolution.org.uk
Instructing solicitors to negotiate
Both mediation and collaborative law can only happen if both members of the couple agree to it. Both are voluntary processes. If one of a couple is resistant to either of these processes and insists on instructing a solicitor, it may still possible to avoid a lengthy and expensive court case.
In this situation, the clients need to emphasise to the lawyers instructed that they wish to work hard to achieve a fair deal, without straying far down the line of court proceedings. There are some solicitors who are lazy about working at a deal, and do not bother to negotiate outside of the court proceedings. It is up to the clients to choose lawyers who will put the time and effort in to find a deal and not abdicate the process to the judicial system.
Court Proceedings
The last option is sadly the most common – which is simply to instruct independent solicitors to represent you in bringing the case to Court, hoping that you might find an agreement along the way. This is much the most timely, costly and acrimonious route. In London, the time taken between starting the case and reaching a final hearing is approximately 15-18 months. It costs many many thousands of pounds and, depending on the case, can cost many tens of thousands of pounds. However, the worst aspect of family litigation is the unquantifiable emotional damage done to the whole family.
Conclusion
It is a failure on the part of the family law system to see so many cases end up in Court. Couples who separate need to be given a proper understanding of the options available to them to reach their own agreement – whether through mediation, collaborative law, or negotiation through solicitors. Then we may begin to see a trend away from the adversarial process. The saving to the families involved, in time money and stress, will be immense.