Alternative Dispute Resolution: how to keep your divorce on-track and out of court15 Feb 2015
As part of Kuits Solicitor’s campaign ‘Divorce: let’s get it right’, its Family Law team is sharing its advice in a three-part series covering all aspects of divorce. The first instalment dealt with signs that a marriage may be in trouble and what help is at hand for couple’s attempting to save their relationships. This second instalment focuses on the alternative dispute resolution methods that are available for couples who feel that it is time to go their separate ways.
The decision to divorce can be extremely difficult and emotionally draining. Unfortunately, even when the decision has been made, there are many things that will need to happen before both parties will be able to move on. Such things may include arrangements relating to any children, finances or property. All of these areas are extremely sensitive and unfortunately have the ability to antagonise ex-spouses, as emotions will be running high. However, it is important to remember that divorce does not need to be acrimonious, so long as both parties are willing to put hurt feelings to one side and communicate in order to reach the best agreement possible.
Alternative Dispute Resolution: Your Options
For couples who wish to keep their divorce out of court, there are Alternative Dispute Resolution (ADR) options available. Whilst there are several ADR methods, each case must be examined on an individual basis, as there may be certain factors that make one option more appropriate than another. Thought must be given as to which path would be least disruptive for any children involved and whether the spouses wish for the arrangement to be long- or short-term. In addition, the disposition of a spouse may impact your chosen method, as it is imperative that both parties are on equal footing so that the terms of any agreement reached are equitable. Mediators will often take this point into consideration when advising on how to proceed.
Some separating spouses may think that they will be able to reach any necessary arrangements between themselves. If this can be done, it will not only save on legal costs, but it also has the potential to keep animosity at bay. In order for spouses to be successful using this method, it is advisable for each party to gain initial independent legal advice to ensure that they are both aware of their rights from the offset. It is also imperative for the parties to know that any arrangements reached will not automatically be legally binding. Therefore, once a suitable agreement has been drawn up, it is advisable to instruct a solicitor to create a consent order that can be filed with the court for approval.
It is not always viable for spouses to sort out their divorce arrangements between themselves and often there needs to be some sort of intermediate figure to manage the situation. An excellent option in this scenario would be mediation, where an independent mediator is jointly instructed by both parties to identify any issues, before aiding them to reach an agreement. Whilst the mediator will facilitate negotiations, the content of the agreement reached will be decided by the spouses. This provides guidance whilst allowing the couple to stay in control of the outcome. If a couple is able to reach an agreement through mediation, the mediator will draft a ‘memorandum of understanding’. It is advisable at this stage for each party to take independent legal advice and, if both spouses are still happy with the content of the agreement, a lawyer can be instructed to draft a consent order. This must then be filed at court for approval, after which the terms become legally binding.
Due to the significant benefits of mediation and its high level of success, the government are keen to encourage its usage, evidenced by the fact that, in April 2013, Mediation Information and Assessment Meetings (MIAM) became compulsory for the majority of divorcing couples. The purpose of these meetings is to provide the parties with information in relation to mediation and other forms of non-court based dispute resolution.
If mediation is unsuccessful, or separating spouses do not feel that it is a suitable method for them in the first place, then an alternative method of dispute resolution is arbitration. Using this process, the parties will enter into an agreement to appoint an arbitrator, who will make a final and binding decision. Although arbitration mirrors the outcomes achieved by going to court, it does so in a more flexible, less formal manner. It can be used when no arrangements have been made or, alternatively, when couples have reached agreements in some areas, but are struggling in other areas. One benefit of arbitration is that the same arbitrator will deal with the case from start to finish, and will therefore be familiar with the details, so their decision will take into account all the information presented to them. Parties using arbitration also have the flexibility to make decisions regarding the time and place of the hearings.
Collaborative law is another method of alternative dispute resolution available to divorcing spouses. Here, each party instructs a collaborative lawyer and then four-way meetings will take place so that each aspect of the divorce can be dealt with face-to-face. Before the process begins, both spouses and their lawyers must sign an agreement that they will not take the matter to court. In the event that they end up doing so, both parties must instruct new lawyers to represent them. The logic behind this is to encourage everyone to work their hardest to resolve the matter without it becoming litigious. Independent advisors, such as accountants and relationship counsellors, are permitted to join the process in order to assist if both parties desire them to. If the process is successful, then your collaborative lawyers can proceed to prepare a consent order setting out the agreement reached and this can then be filed at court for approval, after which the terms of the order become binding.
Going to Court
When attempts at ADR are unsuccessful, or in cases where they are not suitable in the first place, the remaining option is for both parties to hire lawyers who will negotiate and proceed to court if necessary. Even in this event, the process needn’t be acrimonious.
In our next and final instalment, we will discuss how to go through the court process whilst remaining amicable.
For further information on mediation, please click here
Mediation is a service available through Relate. For further information please call them on 0300 003 2331, email them at email@example.com or visit their website: http://www.relate.org.uk/relationship-help/help-separation-and-divorce/mediation