Divorce is a legal process in which the court has to be involved as it changes a person’s status from married to divorced. However, it is predominantly a paperwork process (and now can be conducted online) and so does not have to involve any attendance in a court room in front of a Judge.
In discussing alternatives to court, we are looking at ways to avoid ending up in contested court proceedings in disputes over money or children.
Mediation
Mediation is where the separating couple meet with an independent mediator who may also be legally trained (but does not have to be). In some cases, a mediator can put each person in a separate room and move between them (shuttle mediation). You will be required to produce the same level of financial information along with supporting evidence as within the court process. All discussions are confidential and cannot be reported to a Judge should matters break down.
A mediator cannot come up with the overall solution, nor can she give advice to the couple. Each person will be asked to see their own lawyer to obtain independent legal advice. The role of the mediator is to help couples reach an agreement, through questioning and reality checking but no outcome can be imposed.
Although mediation can arrive at an agreement, it cannot give the couple a legally enforceable order. That has to be drawn up subsequently by a solicitor and submitted to the court. However, where it is an agreed document, it can be dealt with as a paperwork process and, in most cases, no one needs to attend court. See Divorce Mediation: Resolving Conflict the Mediator’s Way
Collaborative Law
In collaborative law both the couple and their respective lawyers sign a contract to say that they will not take their claims to court. If the collaborative law process breaks down, each party has to then instruct a different lawyer to move into negotiations or, ultimately, court based litigation.
The discussions in collaborative law are confidential and cannot be referred to a Judge in any subsequent proceedings, but any documents and factual information can be transported out of the process. As lawyers are involved in the collaborative law process any agreement reached can be drawn up by them and submitted to the court for approval by a Judge.
Collaborative law operates by way of meetings rather than through solicitors writing letters to each other and the idea is that the couple can tailor their agreed solution to the needs of their particular family and their priorities. Having lawyers involved in the process throughout means that legal advice is available at all meetings and the solicitors can ensure that solutions under discussion are ones that would be acceptable to a court. See How Collaborative Divorce Works
Solicitors’ negotiation
This is what people think of solicitors doing. Each person sees their own solicitor, who can then give them advice on what information will be needed to then move onto the likely terms of settlement. Letters are then written to the other person’s solicitor, or to them as an individual, hoping over time to reach agreement. In some cases, it can be useful to set up a round table meeting where the couple and their lawyers try to reach a settlement in direct discussions. Once agreement has been achieved, it is drafted and sent to the court for approval by a Judge as a paperwork exercise. A large number of couples achieve settlement this way. See What to expect from Solicitors’ Negotiations
Arbitration
An arbitrator is effectively acting as a paid Judge. The parties can, by agreement, limit what they are asking the arbitrator to make a decision upon. The arbitrator can give his own view on procedure, in particular the number of hearings, but the parties can also agree to restrict the arbitrator’s role to providing a written arbitration award, rather than conducting a hearing.
Both parties have to agree to enter into arbitration. Once the arbitration has commenced, neither party can unilaterally withdraw from that process.
The costs of the arbitrator are generally shared between the parties. As it is a quasi-judicial process, lawyers are involved so each party has the cost of their own lawyers in addition to their share of the arbitrator’s fees. An arbitration award is then submitted to the court on a paperwork basis and the court will make an Order mirroring the arbitration award. There is no process for appealing an arbitration award. Because the parties are paying for the arbitrator’s time, it may not seem a particularly cheap process but there is a perceived advantage in being able to streamline the process itself and in having a degree of certainty over timescale and level of expertise. See What to expect from Arbitration
Private Financial Dispute Resolution (FDR)
For many couples negotiating through solicitors, they adopt many of the steps that would be required within the court process. They use Form E for sharing financial information with each other and they might raise queries on that financial information through formal questionnaires. Now there is also the option of taking the most effective part of the court process, the financial dispute resolution (FDR) appointment and having that hearing completely independent of the court’s own process.
This is known as a private FDR and can be very effective in reaching a settlement. Arranging a private FDR means that the parties choose and pay for a barrister or deputy district judge to conduct the hearing (an evaluator), and they know that they will have his or her undivided attention for the whole day. In the same way as a court-based FDR, the evaluator will not be hearing evidence from the parties but will give his indication as to the likely terms of settlement after hearing argument from both parties’ representatives and reading the paperwork provided.
A private FDR is also available to parties within court proceedings. They can ask the court to allow them to step outside the court process just for that one hearing. If it is unsuccessful they come back into the court process and go onto a final hearing, but if it produces an agreement this can be converted into a binding court order. The advantage for parties in litigation is that they are not risking being told on the day that the court has no time for their case or that their matter will be heard by a Judge with little knowledge of family law.
Barr Ellison Law can identify the right process for you to help you avoid the costs and delays that court based litigation can bring.
