Separating from your partner is undoubtedly one of the most stressful situations you can be in. Not only are you dealing with the breakdown of your relationship, but you might also be worrying about your children, worrying about where you are going to live and worrying about how you are going to make ends meet. Many people feel completely overwhelmed when they separate and the uncertainty of their situation, and what is going to happen, can be a major factor in that.
One of the things that is apparent to me as a family lawyer is that going into court can often amplify those worries and concerns.
By going to court parties give a third party (the judge) the ability to make decisions about them and about their children. It can sometimes be the case that the decision a judge makes is not particularly attractive to either party but once the judge has made a decision they must comply with it. It can take a long time for a court case to run its course and, even once the final hearing has taken place, for the judge to issue his or her decision.
Court is very expensive and inflexible. It also tends to polarise parties and entrench them in their respective positions. That not only makes the court process itself difficult but can have longer term implications for the couple and for any children.
A way to reduce and reduce the stress in a separation case might be to consider using alternative dispute resolution (ADR) options.
Collaboration
Collaboration is one such option. The collaborative process offers a non-confrontational approach which is focussed on finding positive solutions. Calm and respectful discussions take place around the table with both parties and their lawyers present. Other professionals (who are also collaboratively trained) can be brought into the process and attend meetings including financial advisors and family consultants. The structure of meetings avoids the need for lengthy emails and letters between lawyers which can reduce cost and misunderstanding.
The parties to a collaborative case along with their lawyers must sign a participation agreement. This agreement governs the process and commits everyone to act with respect and integrity throughout the process. Importantly, it includes an undertaking not to use court as a threat. If negotiations break down and either party wishes to proceed with a court action both lawyers must step out and new lawyers will be required. This is a helpful inclusion and helps focus everyone on finding a positive solution that works for all.
The structure is flexible in terms of meetings being scheduled as and when suits parties. The structure allows for key urgent issues such as arrangements for children and interim finances to be discussed and agreed quickly. Longer term issues can then be discussed at subsequent meetings once relevant information, such as financial vouching, is available.
The collaborative process allows a separating couple to remain in control of their separation. They are free to discuss all options and come up with a resolution that works for them and for their children. It also allows them to factor in things that might be important to them but might not be so relevant in the court arena. The feeling of being in charge of and responsible for the outcome of negotiations helps empower parties. The fact that all discussions take place around the table also really helps parties with communication. This can be a hugely beneficial for the longer-term relations between the parties. Where there are children the importance of good communication cannot be overstated.
At the conclusion of the collaborative process the lawyers involved will draft the appropriate legal document to ensure that the agreement reached is legally binding and enforceable.
Mediation
Mediation is another good option. Mediation offers parties the opportunity to achieve a peaceful and constructive resolution to their separation by having discussions with the assistance of a mediator. The mediator is independent and impartial and can help the parties focus on effective communication and mutual understanding. This can help parties find common ground and find a good way forward for them and their family.
Again, the structure of mediation allows a flexible option whereby meetings can take place at a time to suit all parties and the mediator. Similar to collaboration, key urgent issues can be discussed first and longer-term arrangements discussed at a subsequent session.
Mediation also offers an option for parties to remain in control of their separation. They can discuss and come to an agreement that suits them and their family.
Mediation is another option which can be hugely beneficial in terms of future communication between parties. If there are children, then this will be of huge importance and can help provide for a successful co-parenting relationship going forward.
In a mediation case, once a decision has been reached between the parties, they will require to instruct solicitors to draft the relevant document to create a contract between them.
Arbitration
The last ADR option that should be considered is arbitration. Arbitration is a legal process where the parties to a dispute appoint an arbitrator to decide their case. It can be a really good option when parties need someone else to make a decision for them. The decision of the arbitrator is binding upon the parties giving them certainty.
One of the main advantages of arbitration is the ability to choose your decision maker. The parties can ensure that they chose an arbitrator with the relevant expertise for their case.
Arbitration is much quicker and more flexible than court. The arbitrator can be asked to make a decision on a discreet point which, once decided, may enable the parties to proceed with another ADR option. For example, if a determination were made by an arbitrator as to the date of separation then the parties could then negotiate a financial settlement based on that date using mediation.
Arbitration can take place at a date, time and location which suits everyone which is a real advantage. It is much quicker and more flexible that court.
Another of the major advantages of arbitration is that there is a greater scope for confidentiality than court. That can be particularly advantageous where there are sensitive issues or where there may be interest in the parties and their financial position.
Although arbitration does not allow parties to regain control of their settlement it does enable a quicker and more cost effective option which can only be beneficial and help seek to reduce stress for a separating couple.
We have lawyers who are trained collaborative lawyers, mediators, and family law arbitrators. We will always give advice as to the best way to progress and resolve your case tailored to your individual circumstances and needs. Please get in touch with us to discuss further.
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