At CFLP we believe in putting you, our client, firmly in control of choices during separation and divorce, and are expert at making sure you are fully informed so you can make the right decisions for you and your family. This is therefore a short blog that collects together all of the different ways in which it is possible to sort out arrangements for a changed family – whether about finances or about children. You can find more details about each of these processes here.
Mediation is a voluntary, confidential process particularly suitable for couples where there remains an element of trust and goodwill, even if it is partly obscured by disagreement and conflict. In joint meetings, the trained and experienced mediator (we have three here at CFLP) guides you through discussions which help you both to say what you want to happen and why, and hopefully to reach an agreement after discussions. It works particularly well for disagreements about children where both parents usually have the children’s best interests at heart. It can also be very effective in sorting out financial matters, even those where it seems that there are big differences of opinion about what the outcome should be.
For mediation to work well, it helps if both parties are at a similar stage emotionally and are willing to try to leave old arguments outside the door to focus instead on practical issues and planning for the future. It is sensible to take legal advice alongside the mediation process – this can be the best balance between keeping costs low while maximising your potential to achieve a settlement that works for you. If you don’t like what’s on the table and feel unable to reach an agreement, you are free to walk away at any point and pursue a different method of getting what you want (eg by litigation).
Mediation is not appropriate for everyone, and won’t work where there is a significant power imbalance, eg where one person knows a lot about the finances and the other knows nothing, or where there has been domestic abuse. Also, the big hurdle for mediation is that both people have to want to do it, and understand that they may need to compromise in order for the dispute to be resolved.
Collaborative family law is so called because the lawyers and clients work together to facilitate a fair resolution of the issues for everyone involved in a non-positional, non-confrontational way. It is particularly suitable for families where there are elements of complexity in sorting out arrangements for the future after divorce or separation, but some element of goodwill remains which can form the basis of an agreement not to litigate with the same solicitors if arrangements cannot be made in the collaborative law process (so it is in everyone’s interest to make the process work). Legal costs are controlled because as far as possible matters are dealt with in meetings with limited scope for dealings beyond. Collaborative law works particularly well where there are interlinking issues which have an impact on both children’s arrangements and financial outcomes, and where the people involved may need more legal support to make decisions than might be available within a traditional mediation process.
Collaborative law is useful in a wide variety of circumstances but may not be appropriate or possible where there is little trust, if the couple are in the midst of a very acrimonious separation. Because collaborative law is a specialist area, not all family lawyers are collaboratively trained (although all of us at CFLP are), so if you are interested in this option then it does restrict your choice of lawyer to act on your behalf. And although very few collaborative law cases don’t end in a settlement, there is always the risk of duplication of costs if the process terminates without success and you need to ask the court to decide.
Arbitration is where a trained arbitrator makes the decisions for you – a bit like having your own private court, where you can choose the judge as long as you agree in advance to abide by the award. It is new to family law and is perhaps particularly suitable for complex financial issues where matters need resolving quickly, and for smaller “sticking points” that threaten to derail the possibility of agreement in other areas. We understand that there have been about 20 arbitrated awards so far since the launch of the scheme in 2012, and there are now 107 trained arbitrators http://ifla.org.uk/directory/. This process option has been slow to take off but has some advantages, particularly in the light of the pressure on the court system and its associated delays.
Family arbitration is only available for financial matters, not those concerning children. Awards made by arbitrators in family law matters are also untested in court (although there is clear evidence that judges are likely to uphold arbitrated awards in the absence of very good reasons to overturn them). A further drawback is that, like other forms of non-court dispute resolution, nobody can be compelled to arbitrate and delay may work in the interests of one person, so they may not be minded to agree to an arbitrated settlement which is likely to be quicker than the court.
Finally, litigation is always available to settle disputes on divorce and separation – the court is the default option because this is the only process that can force someone to participate or even carry on regardless if they don’t. In court however, there is always an element of control lacking: you have given the power to decide to someone else. All you can do (or, alternatively, your legal representative can do) is to put your case in the best possible light and hope that the judge sees your point of view, or that an acceptable settlement can be reached by negotiation beforehand. If not, you’re stuck with a decision you have to make work.
So there, briefly, are your process options for sorting things out if you’re separating from a partner or getting divorced. If you’d like to talk to us about anything you’ve read here, do give Adam, Sue, Gail or Simon a call on 01223 443333.