When a couple break up and start thinking about sorting out their finances or agreeing arrangements for their children they will often imagine having to go to Court, which can cause worry and stress.
Emotions are generally running too high when a couple have just split for them to be able to agree a way forward without help, but there are many ways of resolving the matrimonial finances, or making arrangements for children to spend time with each of their parents, without going to Court.
The first, and most well known, is family mediation. Mediation is a voluntary and confidential process.
A mediator is a trained professional who will speak with the couple either together or apart, if they prefer. The idea is to try to get everyone round the table to openly discuss matters and try to work through any issues that exist between them. It is commonly mistaken as being a form of marriage counselling. The mediator will not be looking to encourage reconciliation, although of course this will not be discouraged. The point of the mediation sessions will be to try to resolve matters. In cases involving children, parties will be able to air their concerns, and hopefully then be able to agree arrangements for the children. In discussions involving the matrimonial finances, firstly there will need to be financial disclosure (telling each other what assets you have and what your income is), and once the mediator and each of the parties have a full picture, to try to negotiate a fair and positive settlement.
Any agreement reached in mediation is not legally binding by itself, but it can then be turned into a Court Order, which is usual in financial matters. It is always possible to break from mediation to then take legal advice, and mediators are likely to encourage this. They will certainly advise the parties to each take their own independent legal advice as they go along.
Mediation is not necessarily the answer for everybody, and it can be difficult if one party feels intimidated by the other, or if there has been domestic abuse. For a lot of people, it can be useful as a way of working through problems and discussing issues, and sometimes conversations face to face result in problems being overcome more quickly than through Solicitors’ letters.
Public funding is still available for mediation but it is subject to a means test. The first mediation session is now publicly funded for both parties if one party satisfies the means test.
A lesser known way of resolving matters without going to Court is the process of collaborative law. This is a method where lawyers and clients work together to try and sort things out. At the beginning of the process, an agreement is signed by both collaboratively-trained lawyers and the parties to say that they will not go to Court to try and resolve matters and then meetings are held with both parties and the lawyers present, to try and negotiate settlement.
Again, in financial matters, full financial disclosure is necessary before the settlement negotiations are discussed. The negotiations generally take place in a round table environment. The aim of lawyers who are collaboratively trained is to work in a non-confrontational way.
Collaborative law can be most helpful where parties are dealing with both the matrimonial finances and matters involving the children as everything can be discussed at each of the meetings. Sometimes parties feel that an agreement dealing with all aspects of their separated lives is best for them.
Finally, it is possible for parties in financial disputes to attend arbitration which is private judging. Again, financial disclosure is required. Arbitration sometimes looks a little bit like Court proceedings but it is held in private. It sometimes is completed entirely on paper. The end result is a binding settlement which is then turned into a Court Order made by consent which then makes the agreement enforceable in law.
Some people do find this method to be quite useful as it does avoid the delays of the Court system, and both the process and the outcome are completely private and confidential. It is recognised that arbitration can sometimes work well with mediation, or collaborative law, to decide on any remaining issues that cannot be agreed between the parties.
For some separating couples, an application to the Court is the only way of reaching a resolution as it is not possible for them to reach agreement. It is now a requirement that alternative methods of dispute resolution are at least explored and parties are expected to attend a mediation information and assessment meeting (a MIAM) before making an application to the Court, unless for example, an emergency situation requires an urgent Court application or there has been domestic violence.
We are happy to talk to anyone who is unsure about the way forward to discuss which option best suits them, and then recommend someone who can help.