On 23 November 2015, Resolution launched its fourth annual Family Dispute Resolution week. The purpose of the event is to increase public awareness of the alternative dispute resolution options available for families involved in separation and divorce matters and this year’s theme focuses on “putting children first”. The family team at TSP will be running a series of free family law clinics during the week in support of Resolution – the dates and locations can be found here.
According to the latest figures released by the Office for National Statistics, in 2015 there were 18.7 million families in the UK, with the most common family type being married or civil partner couple families with or without dependent children at 12.5 million. Of those in married relationships, 42% are expected to end in divorce with around 118,000 divorces taking place every year (the equivalent to 13 divorces per hour) and with almost half of all divorcing couples having at least one child aged under 16 living in the family.
It follows that there are a significant number of children in the UK involved in family break-ups. The emotional and financial pain caused by relationship breakdown is well-publicised, especially when children are involved, and couples and children in this situation often find their break-up extremely stressful and distressing. The video above has been published by Resolution to show parents how they can put children first during divorce – communication is key.
How to put children first without going to court: Consequently, many families going through divorce or separation, whether married or unmarried, will prefer where possible to resolve matters in an amicable and civilised manner so that conventional litigated court proceedings can be avoided and only used as an option of last resort. They will prefer an option which enables them to put the best interests of their children first, so that they can focus on working together to sort out the practical arrangements of their separation. This invariably helps children facing a family break-up as they can witness their parents working together to plan for their future, albeit as a separated family.
There are a number of alternative non-court dispute resolution options available to families facing divorce and separation, all of which can enable parents to put their children first. There are a number of other ways in which the consequences of relationship breakdown can be resolved, including traditional solicitors’ negotiation, arbitration and private judging, but this article focuses on the options of mediation and collaborative law.
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. 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.
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 effective way of solving all types of family law disputes, including the financial and children arrangements arising from divorce and separation.
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 lawyers 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 recording it in a formal document, usually by way of court order.
The benefits of mediation and collaborative law in terms of putting the children first: 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, along with the other alternative options mentioned above. 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.
During Family Dispute Resolution Week, the Family Law team at Thompson Smith and Puxon will be holding a free clinic for anyone contemplating or involved in family law matters who wishes to discuss the alternative options of resolving their divorce or separation so that they can focus on putting their children first.