Mediation and collaborative law
Increasingly now there are alternative routes to resolving family issues and avoiding the conventional court process. These alternatives will not suit every client but they should be considered carefully and we set out here an outline of some of the most established options. It is important to bear in mind that the court process now requires attendance at a Mediation Information and Assessment Meeting (a MIAM) before the issue of most proceedings, to establish whether mediation or another form of alternative dispute resolution may be appropriate for the situation.
Traditionally when couples separate they begin by taking independent advice from specialist family lawyers, and working with their lawyers they seek to reach agreement on how best to resolve their differences. They work out how to share the assets, and the responsibilities for the children, as they each go their separate ways.
In many cases with the help of sensible and experienced solicitors, couples are able to reach agreement in this way. The court system now not only requires the parties to attend the MIAM, but also builds into the formal procedure a “Dispute Resolution” hearing, at which many cases are resolved.
However, when they are not, the decision is left to the family courts, in the context of a contested hearing, often involving evidence from the parties and others, and inevitably substantial delays and costs. Such hearings can lead to uncertain and unpredictable outcomes, and often more distress and confrontation for the family as a whole.
One long established option is mediation. Mediation is not a substitute for legal advice, and it can be effective whether or not the parties have solicitors. It is very often combined with solicitor advice. Its purpose is to help separating and divorcing parents to decide (if they wish) the full range of issues, including financial resolution, the arrangements for the children, the time the children should be spending with each parent, and other related practical matters. An impartial mediator will help the parties decide on all the relevant arrangements, in a series of sessions over a sensible period of time, the length of which will depend on what needs to be discussed and how difficult the problems prove to be.
Mediation is an independent confidential process that aims to help people reach their own decisions for the future, and can assist in avoiding or much reducing an often lengthy and painful court process.
Once the mediation has progressed to a satisfactory state, then if they have not previously done so, the parties can each seek independent advice from their solicitors, to ensure that the outcome achieved in the mediation is a fair one and to assist in converting it into a formal agreement or a court order.
Collaborative law is also designed to assist couples to manage their divorce or separation in a dignified manner on financial matters, as well as issues concerning children. It differs from mediation in that the collaborative lawyers act as facilitators but alongside that, provide legal advice to their individual clients, whereas the mediator works as a neutral third party facilitator, but cannot provide legal advice.
The essential feature of collaborative work is a pledge by the couple and their lawyers not to litigate the issues in court, but instead to commit to resolving the dispute through co-operative negotiation, working in meetings with clients and solicitors around a table and allowing all those involved to focus on what is important to them, rather than on the strict requirements of the courts procedure and timetable. The process is preceded by the signing of a collaborative agreement which confirms everyone’s commitment to the process and sets out the principles and the ground rules.
All negotiations are carried out in face to face meetings, on a flexible timetable, between the couple and their lawyers. This is intended to give the couple a sense of control often lost in the more conventional procedures, and importantly, help in preserving family relationships for the future. The collaborative process can also involve other experts where appropriate, including family consultants with a therapeutic or counselling background, to assist with emotional problems arising from the breakdown, and also accountants or independent financial advisors.
The number of meetings will of course vary from case to case, but once all the issues are resolved then the couple will sign a document setting out the details of the agreement, and that can then in due course be converted into court orders in divorce proceedings.
If the collaborative process does not work, then the couple are free to take matters to the court, but they cannot retain the same collaborative lawyers although they can retain any financial information exchanged. This constraint is designed to encourage the couple and their advisors to work through the difficult issues and find an acceptable solution, rather than abandon the process and trigger the need to instruct new layers.
Arbitration has been a long established alternative to litigation in the commercial world, and there are now many trained Family Arbitrators, including specialist QCs and retired judges. The attractions of this option include, control over the timing and venue, the ability to select a specialist arbitrator known to the participants, the privacy and confidentiality of a hearing which is not open to the public, and the avoidance of the delays and uncertainties of the court system.
A fee will be payable to the Arbitrator, the level being dependent on seniority, but this may still be a less expensive route than waiting several months for a court date and continuing to incur costs during that time. Overall the costs of this less formal and more flexible process should compare favourably with a court hearing.
The case law now indicates that the decision of an arbitrator is likely to be binding and will almost always be enforceable through the court in the event that either party tries to renege.
Private Financial Dispute Resolution Hearing (FDRs)
Most of the trained specialist family arbitrators are equally willing to conduct a private FDR and the attractions and benefits, and fees, are much the same as those for an arbitration. The key difference is that at a private FDR the arbitrator mirrors the court process, and cannot impose a binding enforceable decision on the parties as at an arbitration hearing. He or she can only express a clear experienced view, make recommendations and encourage the parties to reach agreement.
As the FDR process which operates within the court system becomes less reliable, with fewer experienced judges, and as delays increase, this private option becomes more attractive than ever.