Shelley Cumbers, Family and Divorce Law solicitor at Thompson Smith and Puxon (TSP), discusses alternative ways of resolving family law matters.

Figures show that the number of people choosing to marry is in long term decline in England and Wales. In stark comparison, the number of cohabiting couples choosing to live together outside of marriage is on the up, making cohabiting couple families the fastest growing family type over the last decade.

That being said, recent figures released by the Office for National Statistics reveal that there are around 118,000 divorces every year (that’s 13 divorces every hour) with 42% of marriages expected to end in divorce. In 2012, 48% of couples divorcing had at least one child aged under 16 living in the family.

There is an increasing public awareness of the emotional and financial pain caused when relationships break down, especially when children are involved. Couples in these circumstances often find their situation distressing and stressful. For this reason, many couples going through separation or divorce would prefer to resolve matters in an amicable and civilised manner so that conventional court proceedings are avoided and only used as an option of last resort.

Non-court dispute resolution processes

Thankfully, there are a number of alternatives available to families involved in relationship breakdown. Whilst this article focuses on the mediation and collaborative law processes, couples should be aware that there are many ways in which the consequences of their relationship breakdown can be dealt with including:

  • Mediation
  • Collaborative law
  • Solicitors negotiation
  • Arbitration
  • Private judging

Mediation: Mediation, as an alternative to the conventional legal process, has been around for many years. However, there is now a real drive towards mediation particularly in light of a number of family law reforms introduced in 2014. From 22 April 2014 it has become compulsory for anyone wanting to make a relevant family court application to first attend a Mediation Information and Assessment Meeting (called a MIAM) with an appropriately qualified mediator to find out about mediation and other non-court options. There are limited exceptions when attendance at a MIAM is not required. However, ordinarily, a court may not issue or otherwise deal with an application if the applicant has not attended a MIAM.

Like a number of the other options outlined above, mediation can be particularly helpful where there are children involved and where couples also need to agree what arrangements should be made concerning financial and property matters.

The process involves the couple meeting and sitting down together with an independent trained mediator. The couple’s respective solicitors will not be present at the mediation meetings. The mediator may well be a solicitor, but, if they are, then they are not able to advise or act for either of the parties in subsequent court proceedings relating to or arising out of their divorce or separation for example. In practice, the mediator will recommend for both parties to take independent legal advice alongside the process and especially at the end, if an agreement is reached.

The role of the mediator is to identify the issues in dispute and to help investigate the areas for agreement. Mediation is a private and consensual process and the mediator will remain impartial. In a financial case, both parties will be required to provide detailed financial disclosure of their respective circumstances in order to explore possible settlements.

A mediator has no power to impose an outcome on the couple, but will sign off any agreement that the couple might reach. In mediation it is possible for a negotiated settlement to be achieved relatively quickly, even within a matter of weeks. For this reason, mediation can be a very cost effective way of solving all types of family law related disputes, including cohabiting couples and those in same sex relationships.

If an agreement is reached at mediation, the mediator will prepare a written summary of the agreed terms together with a summary of any financial disclosure exchanged between the couple. The agreement does not become legally binding until both parties have had the chance to talk it through with, and take advice from, their own solicitor. If, after legal advice, both are still happy to proceed with the agreed terms, the family lawyer will convert the agreement into a legally binding document. In cases where there are pending court proceedings this document is known as a Consent Order. The family lawyers will also assist the couple with any necessary implementation matters.

Collaborative law process: Unlike mediation, the collaborative law process is a relatively new non-court dispute resolution option. The way collaborative law works is that the couple both instruct their own collaborative lawyer from whom they each receive guidance and legal advice throughout the process. A collaborative lawyer is a family lawyer who has received additional specialist training, normally from Resolution, and who is qualified to undertake such work. The couple and their respective collaborative lawyers all sign an agreement (known as a participation agreement) committing them to use the collaborative law process to reach an agreement rather than going to court.

A series of 4-way face to face meetings will then follow, which each party and their respective collaborative lawyers attend. The purpose of the meetings is to work things out face to face rather than go to court. The process, whilst being a relatively new option, has a good success rate.

If necessary, independent and impartial third parties who are familiar with collaborative law can be brought into the process to assist the discussions, such as independent financial advisors, family consultants, child specialists, accountants or a collaboratively trained barrister. All of these professionals can help to make up a collaborative law team.

One of the reasons why collaborative law is so successful is because, in the unlikely event that an agreement cannot be reached between the couple and the collaborative law process breaks down, both of the collaborative lawyers are prevented from representing the couple in subsequent court proceedings. This means the couple and their collaborative lawyers are committed from the outset to reaching a solution and working things out together, though in practice a conciliatory approach is adopted by the majority of family lawyers even if not using the collaborative process.  Clients who opt for the collaborative process must be prepared to change to a different firm of solicitors if the process does not result in an agreement.

Collaborative law is suitable for all types of family law related matters. One of the main advantages of negotiating an agreement outside of the court process is that couples can set the agenda according to what matters most to them and their family. The pace of the process can be adapted to suit the individual couple so that they can work things out as quickly as they wish rather than in accordance with a strict court timetable. In cases where it is felt that there may be a need to impose a structure and timetable by making a court application, the collaborative process would not be appropriate.

The number of collaborative meetings required to reach a settlement varies from case to case and is wholly dependent on the couple, the family and their circumstances. Some cases are settled in a couple of meetings, whereas others may take four or five meetings. The couple and their collaborative lawyers will agree how often the meetings are to take place, what issues will be discussed, and what information will be needed for each meeting.

As with mediation, if the case involves finances the couple will be required to provide full and frank financial disclosure during the process. Without a willingness to disclose fully and honestly all information about their respective financial circumstances the collaborative process will not work.

Collaborative law is most suited for couples who wish to avoid the uncertainties of the court-based system. It is for people who want to reach their own agreement rather than have one imposed on them in a courtroom by a stranger and who believe that the collaborative process gives them a realistic prospect of achieving this. The parties benefit from legal advice without risking the threat of court action during the negotiations as all those involved are committed to working together to find the best solutions. As with mediation, once an agreement is reached in collaborative law, the lawyers will deal with implementing the agreement and formally recording it in a formal document usually by way of court order.

When couples involved in relationship breakdown have a genuine wish to reach their own amicable agreement without embarking on costly court proceedings (both from an emotional and financial point of view), they should consider mediation or collaborative law. This is particularly the case when children are involved given that the couple will remain parents even after their separation. It is widely accepted that children cope better with family breakdown if they can see that their parents are working the arrangements out together. The collaborative law and mediation processes can assist in this regard by creating an environment whereby it is possible for couples to reach solutions together to ease the pain of family breakdown.

Shelley advises clients on all aspects of private family law and is able to offer a free half hour initial chat for prospective clients. She is a member of Resolution and a Collaborative Lawyer. She is committed to resolving matters constructively and sensibly.