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As an experienced Family Law Mediator and Collaborative Family Lawyer with extensive expertise in litigation, I understand the challenges facing separating couples in finding the right way to divorce for their individual circumstances.
The trepidation of a prolonged, costly and stressful court divorce is prompting an increasing number of couples to seek out routes such as mediation and collaborative family law which avoid going to court.
Another option is arbitration where separating couples hire a ‘private judge’ to accelerate the outcome of their financial settlements.
Known as Alternative Dispute Resolution – because they provide alternatives to litigating in court – these three options put children’s best interests first. They also promote a spirit of spirit of collaboration for spouses and parents to achieve the best solutions.
I hope the insights below will help you to decide which is best for your unique situation.
What is mediation?
Mediation is a means of resolving family disputes constructively. It enables you to keep control over decisions which will affect the future of you and your family. In the court process you hand those decisions over to a judge, who does not know you or your family and knows nothing about what is important to you. Mediation is appropriate for most situations including the most financially complex.
Who is involved in mediation?
The private and confidential process takes place in a safe, impartial environment and involves a mediator like me, an independent third party who helps you and your ex to reach an agreement over key areas. At the outset both of you sign an Agreement to Mediate so negotiations can continue on a ‘without prejudice’ basis.
The number of discussions/sessions varies for each couple depending upon the complexity of the split. As a facilitator, the mediator assists, guides, and helps you to move dialogue forward.
Many mediators, myself included, are lawyers and can provide extremely useful information about the law to inform your decisions.
Whether or not they are legally qualified, mediators will recommend that you each retain your own solicitor who can provide specific legal advice where required during the process.
What does success in mediation look like?
A successful outcome in mediation can mean many things. Many couples choose the mediation process to get to an agreement which is formalised in a binding Court Order.
Often called a Final Order, this is a legal document which officially terminates your marriage without you having to go to court. However, mediation has many other advantages, including developing a new way of communicating as separated parents.
Is mediation compulsory?
No. Mediation is a voluntary process. You may have read about a Mediation Information and Assessment Meeting (MIAM) meeting, usually relating to cases involving finances or children, which all divorcing couples are expected to attend before court proceedings are issued.
These meetings are designed to inform you both about alternative resolution schemes and to establish if the circumstances are suitable for mediation.
What are the advantages and disadvantages?
Mediation can result in a swifter resolution, reducing legal expenses which mount up in prolonged court cases between warring couples. Highly confidential, it is a more impartial and considered approach and can lessen the emotional impact of separation and divorce on children.
What happens if mediation fails?
Due to its voluntary nature, talks can be concluded at any time if headway is not made. However, there are many ways in which the process can be adapted to get over sticky issues and avoid failure.
There is an increasing trend towards lawyers being present in mediation sessions to provide technical advice and support during the process, in particular where there are complex legal issues.
Alternatively, disputed legal points can be determined by bringing in a neutral lawyer to give a view or even an arbitrator to give a binding decision on a particular issue. All of this can be done in the context of mediation.
What is collaborative family practice?
In collaborative family practice separating couples make a commitment to avoid the court route and to work together with specially trained lawyers to make their own decisions about the future.
Like mediation, it champions a spirit of collaboration and compromise, is entirely confidential – and puts children’s needs at the heart of discussions.
How does it work – and who is involved?
You and your ex each appoint your own collaboratively trained lawyer and undertake a series of meetings where you all work together to identify, address and resolve financial, parenting and other key issues.
Collaborative family lawyers provide support and legal advice throughout the sessions. Accountants, independent financial advisers, pensions advisers and/or childcare specialists can also attend and provide guidance on a neutral basis. You have as many or as few meetings as are necessary to resolve the issues between you.
At the outset you, your collaborative lawyers and other specialists involved, sign a Participation Agreement that commits all of you to strive to reach resolutions without going to court.
The agreement prevents your collaborative lawyers from representing you in court if the collaborative process fails, ensuring everyone is wholly bought into making the process work.
What are the advantages and disadvantages?
Like mediation, collaborative family practice puts you and your ex in the driving seat so you can progress the sessions at your own pace, working around your respective work and family commitments.
Faster, less stressful and more cost effective than going to court, it ensures that everyone involved is committed to achieving a solution. In times where transparency is encouraged in the family courts and journalists can attend hearings, collaborative practice guarantees your family’s privacy.
What happens if a successful outcome is reached?
Once an agreement is reached, your lawyers will put it into effect, obtaining a formally binding Court Order without you having to go to court.
What if talks break down?
At any time during the sessions either of you can terminate the process through a Formal Notice of Withdrawal if you feel no headway is being made. Again, as in mediation, failure can be avoided with the right support, including where necessary, an early neutral evaluation or arbitration on disputed legal issues.
What is the difference between mediation and collaborative family practice?
In mediation, family mediators are neutral – they cannot give advice to either party as their role is to facilitate discussions.
This differs from collaborative family lawyers who can advise those they represent at the same time as conducting the negotiations. As highlighted above, collaborative lawyers sign up to an agreement not to go to court, which provides a positive investment in the process for the whole team.
What is arbitration?
Arbitration is a private court hearing where divorcing couples take on a ‘private judge’, officially known as an arbitrator, to achieve a resolution to their financial settlements.
How does it work?
Like mediation and collaborative family practice, this option, also conducted in a safe and confidential environment, can avoid a prolonged, expensive and, potentially, public court hearing.
Similar to a judge, the arbitrator hears evidence from both of you, collects relevant facts and bases their decision on the evidence, considering the views of you both.
The arbitrator then makes an Award over who should have what which is final and binding.
What are the advantages and disadvantages?
Divorcing couples have the same arbitrator through the process, something which rarely happens at court where different Judges are involved at different stages of the proceedings.
Quicker, confidential and more flexible than a court option, there is a substantial cost saving when delays are avoided. Divorcing couples set and agree their own timetable at the outset.
If an arbitrator is to be used, this is something which must be agreed. There is no power to compel anyone to arbitrate. Also, arbitrators have no power to secure disclosure from third parties such as accountants or financial advisors or instruct them to present evidence at meetings.
Can couples involved in a court divorce opt for arbitration?
Yes. Court rules give judges the power to halt court proceedings to give you both the opportunity to resolve the dispute through arbitration or indeed any other form of NCDR.
In what circumstances do couples choose a court divorce?
This largely depends on the advice which couples receive. Whilst most lawyers will explain all the dispute resolution options to clients, some, who may perhaps have less or no experience of NCDR, are more inclined to recommend court applications.
The court process has its place. A Judge has the power to compel the production of financial information, ultimately by sending someone guilty of non-disclosure to prison. The court can also order third parties who hold information relevant to the case, for example accountants and other advisers, to provide information. In extreme cases a court can make orders without any engagement from one of the parties.
What does a court process entail?
Before an application can be made to the court for a Financial Order an application must have been made for a divorce or dissolution of a Civil Partnership. The various steps required to get a divorce can be found on the Government website.
As outlined above, before a court application can be made for a financial or children order, every divorcing couple must also attend a Mediation Information and Assessment Meeting
A financial application will involve the exchange of full financial disclosure followed by a series of up to three main court hearings.
What are the pros and cons of a court process?
The role of the court is to encourage parties to make agreed decisions about their finances and children and, in default of agreement, to make binding decisions for them
Court orders, whether made by agreement or imposed by a Judge, are legally binding and enforceable.
There is no privacy in a court divorce, where the proceedings are open. Since 2023 journalists have been able to report in family law courts on cases which include the wellbeing and future of children whose parents are divorcing.
Couples are appointed a judge, who is unknown to them, and who makes vital decisions on key issues about their future. Continuity is not assured with different judges often involved in the proceedings.
Court hearings can be costly, stressful and time consuming. They can heighten conflict between the couple and run the risk of a case being adjourned or unfinished due to pressure on court time or a judge becoming unavailable.
The duration of a court divorce can vary significantly from a few months to years if the divorce is contested.
The breakdown of a marriage invariably leaves those involved emotionally and physically drained and few couples take the decision to separate and divorce lightly
Knowing where to start on this critical path, which will impact on the future of all involved and affect the wellbeing of children involved, can seem overwhelming.
Whichever route you take when embarking on divorce, it is critical that you secure the best possible legal advice.
I cannot emphasise enough the importance of working with highly experienced family law professionals like Jones Myers who are members of family law group Resolution and have a strong track record in their respective fields.
Because we understand that every case is different, our family law experts, who are leaders in their field, deliver a bespoke service, outlining options and offering legal and practical advice at every stage to help them make informed decisions.
Read more articles by Nicki Mitchell.
Read more articles by Jones Myers.
About Nicki Mitchell
With over three decades of experience in family law, Nicki specialises in the financial aspects of relationship breakdown – and particularly complex cases involving family businesses, multiple properties, and complicated pension arrangements.
A skilled Mediator, Child Inclusive Mediator and Collaborative Family Lawyer, Nicki champions Alternative Dispute Resolution processes which avoid a lengthy court process and can lead much more quickly and cost effectively to a successful resolution.
Her exceptional track record also includes advising clients on the more traditional methods of resolving issues surrounding family breakdowns. Nicki.mitchell@jonesmyers.co.uk