Mediation and Collaborative Law
Family law disputes can be emotional and complex and most people want to avoid going to court if at all possible. Most clients prefer to resolve matters quickly – and cheaply – but this might not be possible if they lack confidence to negotiate directly with an ex-partner. In addition, it may be difficult to obtain the information you need or develop a realistic settlement outline. Moreover, sometimes, going to court is the only viable option but our experience is certainly that litigation is the option of last resort for most of our clients. Quite apart from the costs involved and not having any control over the timetable, going to court can also heighten emotions and increase hostility between parties.
We have expertise in a range of methods of alternative dispute resolution (“ADR”), which may offer a suitable alternative to court litigation. We will carefully assess our clients’ circumstances to determine whether any of these ADR options would be appropriate. Once we understand your background and objectives we will be in a position to recommend a suitable strategy in your particular circumstances.
This might simply take place between the solicitors representing the parties involved, or clients negotiating directly themselves. Problems can occur if one party is in a weaker position than the other. For example, one person may feel guilty or not have access to full information, or they may feel pressurised. If you are planning to negotiate directly, we would always recommend that you take independent advice before the settlement is finalised to make sure you don’t lose out.
This process is like ‘shuttle diplomacy’ and involves the parties jointly appointing an independent mediator. The mediator is usually a family law solicitor or barrister who has taken an accredited training scheme in mediation techniques. The mediator is briefed beforehand by the parties on the issues that need to be resolved. A neutral venue is chosen and each party is provided with a meeting room. On the day of the mediation, the mediator will clarify the issues involved and will then ‘shuttle’ between the two parties, determining whether there is scope to achieve a settlement. The mediator won’t provide any legal advice but usually has a good understanding of what might be achieved through litigation. If the parties are able to agree, an formal document is drawn up, which is binding on all parties.
This is a relatively new process, which has proved increasingly popular. Lawyers and their clients work together to resolve disputes respectfully where the legal, financial and practical aspects are all addressed, as well as relationships with children and other family members. All TM Family Law solicitors are fully trained and experienced collaborative lawyers. The difference between mediation and collaborative law is that, while in a mediation the solicitors are not usually present, in a collaborative law forum the solicitors are there throughout to offer advice and support to their clients.
Of course, not all circumstances will be suitable for collaborative law resolution. Clients must be able to participate in good faith and see perspectives and needs beyond their own, for example. But it is a good option for people who:
- Wish to achieve a solution with a minimum of aggression;
- Reach a solution with the best interests of their children in mind;
- Desire to preserve good, open relations with their former partner in the future;
- Want to avoid the stress and expense of court litigation;
- Are not seeking revenge or retaliation – just a fair settlement all round.
Once a client and solicitor have together embarked on the collaborative law process, if the process fails to achieve a solution, that solicitor will no longer be able to act for their client and the latter would then need to find a new solicitor to take the matter forward. There are no guarantees that the collaborative law process will work, that the other party won’t act in bad faith or neglect to provide full disclosure, but if we suspect that this is the case we would advise our client as soon as we were aware of the situation.
Our solicitors will set up a meeting with you to discuss the best strategy and your main goals, which might relate to everything from property, children and access, to financial provision and business and pension arrangements. We will explain the process and encourage our clients to identify any weaknesses or anxieties at the start so that these can be considered. We will then be able to ensure you are fully prepared before arranging the first collaborative law meeting with the other party.
Before the first four-way meeting your solicitor will also meet with the other party’s lawyer to consider the issues, prepare an agenda, establish rules and plan the practicalities. The process is respectful and the lawyers will usually build a rapport prior to the first meeting at which their clients will be present.
At the first four-way meeting the lawyers will summarise the purpose of the collaborative law process, emphasising the respectful approach, the timing, disclosure obligations and practicalities. The clients will be invited to explain their own objectives before signing a four-way participation agreement. This will include the lawyers agreeing:
- Not to go to court.
- To be constructive and fair in finding a solution to all the issues.
- If children are involved, to prioritise their needs.
- To be truthful, open and courteous.
- To jointly instruct any professionals, whose opinions are required.
The clients will agree:
- Not to bring up past grievances.
- To be courteous to one another.
- Not to use threatening language.
- Not to criticise each other in front of the children or involve children in their disputes.
- To promote a loving relationship between the children and both parents.
- To provide full disclosure of all information relevant to the matter.
- Only to discuss the settlement at the four-way meetings.
Depending on the circumstances and complexity of each case, several four-way meetings might be needed before all the issues can be resolved. Separate meetings may be held to identify the facts required and exchange key documents and information. Other professionals may also need to be involved, such as an accountant, or children or pensions specialists. However many meetings there are, the lawyers will assist throughout the process in helping to identify solutions and preparing documents. Your lawyer’s role is primarily to:
- Help resolve any conflicts.
- Assist with the disclosure of documents and the exchange of information.
- Instruct other professionals as appropriate.
- Advise and support you.
- Prepare the final agreement before it is made official by the court.
A final meeting will be held for the parties to approve and sign the final agreement. The solicitors will then prepare all the relevant court documents to formalise the divorce.
If the process breaks down there is provision for a ‘cooling off’ period of 21 days before any further proceedings can commence to give the parties scope to rescue the situation, although this doesn’t apply if either client has broken the agreement. If the client subsequently goes to court with another lawyer, they will not be able to rely on anything discussed at the collaborative law meetings. The reason for this is that any attempt to settle the dispute before going to court is ‘without prejudice’ until a binding agreement is reached between the parties. If no agreement is reached, what was said during the initial negotiations cannot later be used in court to the other person’s disadvantage.
If you decide that arbitration is the most appropriate route to pursue, then this involves both parties instructing an independent trained arbitrator to adjudicate in the dispute and determine how the assets should be divided. An Arbitrator is similar to a Judge in that they will make a decision after hearing evidence from all the main parties concerned. An arbitration agreement will then be drawn up and signed by the parties, which then becomes legally binding.