Mediation, Arbitration, Collaborative Law, Court? : The Best Option For You Part 1
By Jones Myers Partner, Nicki Nitchell, a Family Law Mediator and Collaborative Family Lawyer
As an experienced Family Law Mediator and Collaborative Family Lawyer with extensive expertise in litigation, I understand the challenges facing separating couples in finding the right way to divorce for their individual circumstances.
The trepidation of a prolonged, costly, and stressful court divorce is prompting an increasing number of couples to seek out routes such as mediation and collaborative family law which avoid going to court.
Another option is arbitration where separating couples hire a ‘private judge’ to accelerate the outcome of their financial settlements.
These processes were previously known as Alternative Dispute Resolution – because they provide alternatives to litigating in court. The language has now changed to refer to Dispute Resolution, the hope being that they will become the first choice and court the last resort. I am not convinced that this is where we are now but what is clear is that these options are often better choices than court as they promote a spirit of collaboration for spouses and parents to achieve the best future for their family, with the children’s best interests in mind.
Over the coming weeks I will explain more about these options and their advantages and disadvantages to help you to decide which is best for your unique situation. Our first article focuses on mediation.
What is mediation?
Mediation is a means of resolving family disputes constructively. It enables you to keep control over decisions which will affect the future of you and your family. In the court process you potentially hand those decisions over to a judge, who does not know you or your family and knows nothing about what is important to you. Mediation is appropriate for most situations including the most financially complex.
Who is involved in mediation?
The private and confidential process takes place in a safe, impartial environment and involves a mediator like me, an independent third party who helps you and your ex to reach an agreement over key areas. At the outset both of you sign an Agreement to Mediate so negotiations can continue on a ‘without prejudice’ basis.
The number of discussions/sessions varies for each couple depending upon the complexity of the split. As a facilitator, the mediator assists, guides, and helps you to move dialogue forward.
Many mediators, myself included, are lawyers and can provide extremely useful information about the law to inform your decisions.
Whether or not they are legally qualified, mediators will recommend that you each retain your own solicitor who can provide specific legal advice where required during the process.
What does success in mediation look like?
A successful outcome in mediation can mean many things. Many couples choose the mediation process to get to an agreement which is formalised in a binding Court Order.
Often called a Final Order, this is a legal document which officially terminates your marriage without you having to go to court. However, mediation has many other advantages, including developing a new way of communicating as separated parents.
Is mediation compulsory?
No. Mediation is a voluntary process. You may have read about a Mediation Information and Assessment Meeting (MIAM) meeting, usually relating to cases involving finances or children, which all divorcing couples are expected to attend before court proceedings are issued.
These meetings are designed to inform you both about alternative resolution schemes and to establish if the circumstances are suitable for mediation.
What are the advantages and disadvantages?
Mediation can result in a swifter resolution, reducing legal expenses which mount up in prolonged court cases between warring couples. Highly confidential, it is a more impartial and considered approach and can lessen the emotional impact of separation and divorce on children.
What happens if mediation fails?
Due to its voluntary nature, talks can be concluded at any time if headway is not made. However, there are many ways in which the process can be adapted to get over sticky issues and avoid failure.
There is an increasing trend towards lawyers being present in mediation sessions to provide technical advice and support during the process, in particular where there are difficult dynamics and/or complex legal issues.
Alternatively, disputed legal points can be determined by bringing in a neutral lawyer to give a view or even an arbitrator to give a binding decision on a particular issue. All of this can be done in the context of mediation.
Jones Myers specialist family lawyers are at the forefront of non-confrontational routes to divorce such as mediation and collaborative family practice.
For queries on mediation, divorce or family law, call 0113 246 0055 (Leeds) 01423 276104 (Harrogate), 202550 (York). Visit www.jonesmyers.co.uk, email info@jonesmyers.co.uk or tweet 01904 @helpwithdivorce
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Image by Hutomo Abrianto on Unsplash. This article first appeared in The Divorce Magazine