It is not uncommon for parties who have recently separated to have a different emotional response to the breakdown of their relationship. For example, whereas one party may have already accepted it and be keen to explore how to divide assets and property, or discuss the future arrangements for children, the other party may be feeling angry and upset and as such, less able to move forward.
Whilst parties are in different stages of responding to their separation, it can be helpful for them to look at less contentious ways of resolving the financial matters and arrangements for children.
There are a number of alternative dispute resolution options available instead of the oft-times more adversarial and traditional solicitor-led negotiations or litigation at court:
Direct discussions
parties can enter into discussions without involving solicitors or the court. When discussing financial matters, it is advised that they provide each other with full and frank financial disclosure.
Discussions should held be on a ‘Without Prejudice’ basis in order to keep what is being discussed confidential.
One of the clear benefits is that the parties shall incur no legal costs during their discussions unless they decide to seek legal advice from solicitors.
Parties can also determine the pace of their discussions without being dependent on third parties or the court.
Mediation
Parties shall attend meetings with a mediator, who shall remain neutral throughout the process. Parties shall normally attend meetings together, but in some cases, meetings can be arranged so that the parties avoid coming into contact with each other.
Parties who are attending mediation in order to resolve their financial matters shall be asked to provide each other with financial disclosure, which provides the basis for their discussions as to financial settlement options.
The mediator shall manage and structure the parties’ discussions and can provide useful information to them and signpost where they can seek further assistance from i.e. financial planners, pension experts, counsellors and solicitors.
By attending mediation, parties can set their own agenda as to the issues that they wish to discuss and can control the pace of those discussions.
The discussions held in mediation shall be ‘Without Prejudice’ meaning they shall be kept confidential.
Because of the neutrality of the mediator, the process is much more open and transparent, which can help parties resolve the issues in dispute more amicably.
Mediation is a voluntary process meaning that parties can withdraw from it at any time that they choose.
Parties who attend mediation normally find that their overall legal fees are reduced. That is on the basis that they choose not to seek legal advice alongside the process. They shall, however, be encouraged by the mediator to seek legal advice on the fairness of any settlement that they reach in mediation and in formalising that settlement so that it can become legally binding.
Collaborative Law
Collaborative Law is underpinned by an agreement between the parties and their respective solicitors not to issue court proceedings. Parties shall need to instruct solicitors who are trained in Collaborative Law.
Parties and their respective Collaborative Lawyers shall have a series of meetings together to discuss the issues in dispute, whether these pertain to financial or children matters. Experts or therapists can be brought into these meetings, provided that both parties are in agreement.
The discussions held between parties and their Collaborative Lawyers shall remain confidential.
As with mediation, the parties can set their own agenda and are in control of the pace of the Collaborative process.
This process is also more open and transparent compared to the more adversarial and litigious options of having solicitor-led negotiations or court proceedings, and the combined agreement not to take the matters in discussion to court can encourage parties to engage with each other more positively.
Arbitration
Family Law Arbitration is run by the Institute of Family Law Arbitrators (IFLA).
The process can be used to provide a legally binding outcome on financial and children matters.
Arbitration can be used as to resolve the overall financial matters or isolated issues in dispute i.e. how pensions should be shared between parties.
Arbitration hearings shall be set down before an Arbitrator, who is usually a trained Barrister or Solicitor. At these hearings, parties can attend in person or with legal representatives.
The Arbitration process will be conducted privately and confidentiality.
Parties can choose their own Arbitrator and are in control of when and where their hearings take place.
With the Coronavirus having caused delays in court proceedings that are likely to continue until Spring 2021, parties are being encouraged to consider Arbitration in order to save time and expense.