Mediation is often an excellent way for divorcing and separating couples to resolve disputes about their children or finances. However, when mediation fails, they often believe the only remaining option is to go to court. However, there are alternatives to mediation and litigation which this article seeks to uncover.
Negotiating through solicitors (assisted negotiation)
Alongside mediation, or when mediation fails, a divorcing couple can use their solicitor to negotiate a settlement or agreement. Such negotiations are generally much less expensive than court proceedings, but can run into problems if the other side is not represented or refuses to budge from their position.
Round table meeting
The divorcing couple and their lawyers agree to set aside a day to come together and attempt to negotiate a settlement in an attempt to avoid court. This is often used in conjunction with solicitor negotiations and avoids the constant back and forth of correspondence, offer, and rejection.
The legal representatives typically take the lead on negotiations, having previously obtained their client’s wishes and aim to reach an agreement the same day.
Using the collaborative process
The parties can agree to use the collaborative process whereby specially trained collaborative solicitors are instructed to carry out face-to-face negotiations. These are conducted in a non-confrontational and constructive manner with both parties and their lawyers working together to find a mutually acceptable solution. This has many of the advantages of mediation, with the added benefit that both parties have a solicitor closely involved throughout. In addition, psychologists or counsellors can be invited to join the meeting to support you and/or your former partner in reaching an agreement.
The collaborative process cannot be used unless both parties have their own collaborative solicitor. In addition, legal aid is generally not available, so a party might refuse to incur the cost. Although collaborative law can be expensive, it is not nearly as costly as going to court.
A party cannot be forced to use the collaborative process, and in most cases where mediation has been attempted unsuccessfully, it is unlikely that the collaborative process will work.
Arbitration
Another alternative to family mediation is arbitration. This is effectively a private court system where the parties commit to abiding by the decision of an independent family mediator who will apply the same law as the court, but use a procedure that tends to be faster and more streamlined than the court process.
It is possible for either party to represent themselves during arbitration, so may encourage those without solicitors to at least try to reach an agreement using this process. The parties will usually submit their proposals and the arbitrator will set a timetable for financial disclosure and deciding the final outcome. At the end of the process, the arbitrator will make a decision on how the financial assets should be divided. This is not automatically legally binding and must be made into a consent order which is submitted to the court for approval.
There are a range of costs for using arbitration including arbitrator fees, the costs of venue hire and each party having to pay their own legal fees. So the initial costs for arbitration may be more expensive than going to court, but it could save money in the long run.
Independent barrister review/report
A barrister report can be used to set out what the law is, how it applies to your case, and if you went to court, what a likely outcome would be. The report is not legally binding and can be further mediated using one of the methods set out above, however; it gives you as close to an answer on what would happen at court as you can get without spending thousands of pounds to actually find out.
Crucially, the report comes from a neutral viewpoint. This is why it is so important to maintain the position by not allowing either party to speak with the barrister or amend the report once it has been agreed and submitted.
Private Financial Dispute Resolution Hearing (FDR)
Here, the parties pay an experienced lawyer, retired or part time judge to carry out an FDR with the aim of reaching a financial settlement. An FDR hearing is where a judge hears a summary of the parties positions and given guidance to them about what outcomes are likely or sensible. This option is most often used where there are significant assets or a particular need for privacy, as in high-profile divorces.
Doing nothing
Sometimes (rarely), doing nothing may be a short-term option. Whilst this may be more acceptable for disputes surrounding children, such as not agreeing to a change in a parenting arrangement, where you can simply maintain the status quo, doing nothing with regard to the matrimonial finances can often lead to further issues further down the line. You may need a financial order to determine what happens to your matrimonial home or how other assets will be divided, leaving this undecided only prolongs the agony of divorce. If you leave financial matters unresolved in the long term, there is a very real risk of further claims being made in the future.
Which alternative is best for me?
It is always advisable to discuss your situation with a lawyer before making any hard and fast decisions, as they will be able to guide you through the options and give an honest opinion as to what is likely to work in your particular position.
If one alternative is unsuccessful, you can try another option, but no matter which method you choose, it is essential that both parties are willing to participate, otherwise you will waste precious time and money.
Unfortunately, it is the voluntary nature of alternatives to court which often means that where mediation is unsuccessful, people inevitably end up in court. Of course, there are some who think that somehow things will be better if they get their day in court, but they rarely appreciate beforehand that not only is litigation expensive, but it can also be risky, slow, stressful, and they very often find a decision is reached that neither is happy with.
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