Negotiations between legal advisers will be informed by how the Court is likely to approach matters, whether relating to financial matters or issues affecting children. However, such negotiations can move more swiftly, as they are not constrained by the Court timetable. Outcomes can be achieved more speedily, and more economically.
Negotiations between partners should ideally follow the same template. Crucially, in relation to financial matters, both parties will be required to volunteer full and frank disclosure as in the Court process. Good practice dictates that it should mirror the Courts procedure so that the disclosure process is undertaken with the same thoroughness. This is especially important to ensure any agreement reached has the best chance of being approved by the Court.
In financial cases, disclosure is usually provided by completing Form E. This is often followed through the exchange of requests for further and additional information, as happens in the court process. Only when both parties have a clear view of the financial situation is it possible to start negotiating a realistic (and therefore binding) settlement.
If agreement can be reached, the terms of the agreement can be recorded in a document which is submitted to the Court for approval. In financial cases, this has to be accompanied by a short summary of the parties financial circumstances. If approved, the Court will issue an Order reflecting the agreement and it will be apparent on the face of the document that this has been made by consent.
Neither party has the ability to compel the other to participate in negotiation. If the other party refuses to negotiate, or if the negotiations do not achieve an agreement, it may be necessary to issue Court proceedings in any event. If there have already been attempts to agree a settlement, this may lead to an element of duplication of effort and expense (for example, if Form E has been prepared on a voluntary basis).
Mediation is the process by which the parties who wish to achieve a settlement of issues arising on the breakdown of their relationship commit to doing so with the assistance of a neutral third party (the mediator).
Mediators are trained in the skills necessary to remain neutral and independent of the emotional issues between the parties. A number of bodies provide accreditation for mediators, including resolution. They are bound by their own code of conduct.
The Mediators role is to guide the parties to achieve together a settlement of which they can both have ownership. A Mediator cannot provide legal advice to either party, but can provide information on the letter of the law, on Court procedure and on the mechanics and practicalities of matters that commonly arise in the wake of separation. Their skill lies in facilitating compromise and agreement between the parties.
Mediation can take place at the parties pace. It is not constrained by the Court timetable. It can happen independently of, or in parallel with, Court proceedings. In most cases, the cost of the Mediator is met jointly, or by the financially stronger party.
Although solicitors will not be present at the mediation sessions themselves, it is not uncommon for the parties each to instruct their own lawyer and to consult with them during the process. As a Mediator cannot give legal advice it is essential that parties know what may or may not be a realistic outcome. Taking expert legal advice during the process will greatly enhance the likelihood of a successfully mediated outcome.
Any discussions that take place during mediation are “privileged.” This means that if the mediation is unsuccessful, neither party can disclose in Court proceedings or generally what was discussed during the mediation, concessions made, settlement offers, and so on.
If an agreement is reached though mediation, its key terms will be written down and signed by both parties and the Mediator. In most cases, the parties will then seek that the agreement is reflected in the terms of an Order made by the Court. This is to ensure that the agreement is final and binding and that it has the legal effect between them which they intend.
Without a Court order, a mediated agreement is not absolutely binding.
Collaborative law is a model of legal practice. Issues between separating couples are addressed through a series of meetings attended by both the parties and their legal representatives. The intention is to achieve a settlement without having to go to Court. Each party receives advice from their lawyer in the presence of the other party. Crucially, therefore, both parties must accept from the outset that the usual rules on confidentiality of communications between clients and their lawyers are disengaged. Discussions can, therefore be frank and open.
The collaborative process requires both parties, at a very early stage, to state clearly what the most important issues are for them. A common goal identified by those choosing the collaborative model is to maintain a relationship with their former partner for their childrens benefit.
Correspondence is kept to a minimum. However, it remains essential (in financial cases) that both parties provide full and frank disclosure to the other and their lawyers so that everyone can agree on the financial resources that need to be shared. The lawyers work together to ensure issues are identified and addressed, and solutions are found. Both lawyers will facilitate the meetings.
At the conclusion of a successful collaborative process, the lawyers will reduce the terms of the agreement reached to an Order which can be approved by the Court and therefore be binding between the parties.
One of the key principles of Collaborative Law is a commitment to trying to resolve issues without going to Court (other than to have any agreement reached approved by a Judge). Accordingly, clients (and their lawyers) using the collaborative model must accept at the outset that, if the process does not result in an agreement, those lawyers will be unable to act in any subsequent Court proceedings. The clients will need, if they wish to take matters out of the collaborative process before a Judge, to instruct new legal advisers. This is intended to focus minds on finding the best solutions by agreement, rather than by having a Judge impose them.
As with Mediation, discussions which take place during the collaborative process (but not disclosure given) remain privileged so far as any subsequent Court proceedings are concerned.
As an alternative to Court proceedings, parties who wish to address financial settlement issues may elect to engage an Arbitrator (trained and regulated by the Institute of Family Arbitrators (“IFLA”)) to determine any financial issues between them. The Arbitrator will usually be a retired Judge or other experienced family law professional.
An Arbitrator cannot determine issues relating to children.
The parties must agree at the outset to be bound by the Arbitrators decision. The contract entered into will determine all aspects of what is to happen, including who will bear the costs of the process and of the Arbitrator.
The same Arbitrator will deal with all stages of the case from start to finish. The parties have the major say in how the proceedings run, for example by deciding how to deal with financial disclosure and where and when any hearings take place.
Parties can ask the Arbitrator to deal with all of the financial issues or alternatively limit involvement to one or two specific aspects.
The chief appeal of arbitration is this flexibility and the fact that parties will get a final decision much more quickly than in Court proceedings.
At the conclusion of the arbitration, a decision will be issued by the Arbitrator which is binding on the parties. Arbitrators decisions are often then transposed into a Court Order in identical terms.
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