Anybody contemplating divorce or a separation will have to attend a mediation awareness session before taking their case to Court, unless there are allegations of domestic violence or child protection issues. The Ministry of Justice, in doing this, is issuing a clear mandate to couples to try and resolve their marital disputes out of Court.
A mediator is a neutral third party facilitator but cannot provide legal advice. Therefore, this process usually means that there are three solicitors involved in the process: the mediator, a solicitor for the husband and a solicitor for the wife.
There is however another option for separating couples to enable them to resolve matters out of Court through a process known as Collaborative Law. Collaborative lawyers act as facilitators and provide legal advice. It is a process by which couples and their lawyers commit to resolving matters without involving the Court to make decisions. It is an approach that gives couples their own voice and real control over the outcome.
The collaborative approach allows for the real concerns of the people involved to be heard and taken notice of in a way that is not possible in the more traditional court-based system. It gives couples real control over outcomes whilst, at the same time, helping them to see matters from their partner’s perspective and, if they have children, from their perspective too.
Crucially, the collaborative approach does not involve Court other than to deal with the legal formalities of the divorce and to approve the fundamental settlement reached so that the arrangements are legally binding. These legal formalities will be dealt with on a paperwork basis and the couple will not have to attend Court.
But if the process does not work the couples are then able to take matters to Court. The couples cannot retain the same collaborative lawyers but they can retain any financial information exchanged. In reality this means that couples are far more likely to try and work through issues and find an acceptable solution, rather than abandon the process.
The process itself consists of a series of meetings. The couple will meet separately with their own individual collaborative lawyers but it is the meetings between the couple and the lawyers that will be the mechanism for the resolution of issues. Instead of lawyers negotiating by letter or telephone the couple and their lawyers work things out face to face. If necessary, and as required, experts can be brought into the process to advise the couple jointly about options or valuation of assets, such as IFA’s, accountants, valuers or pension experts, for example.
What the benefits of the collaborative process?
- The couple retain control over issues relating to children and finances.
- The process is confidential, private and creates an environment where concerns can be expressed and agreements negotiated.
- It avoids the expense of litigated Court proceedings and the couple will not attend Court.
- It allows the couple to maintain a working relationship into the future which can be important if they have children or share social or business interests.
- The process is a non-aggressive and more dignified way of resolving matters.
- There is no set or rigid timetable so this means the timescales can fit the needs of the couple.
Most importantly, because of the level of involvement by the couple in the process, nothing happens without them being truly aware of it, or without them agreeing to it. Because of all of this the impact on the family as a whole is much less damaging.