Divorce & separation – which resolution works for you?
On 4 September 2017 the International Family Law Arbitration Scheme was launched. I therefore thought I would compare the different forms of alternative dispute resolution that are available.
Mediation has been an option for many years now and is compulsory for most couples prior to issuing some forms of court proceedings.
It allows for disputes to be resolved quickly and cost effectively with a choice of mediator, location and timings.
Mediation has one significant drawback for some couples in that you do not have legal representation at a mediation session (although you can take advice outside of sessions.) The agreement that is reached is without prejudice and a solicitor can convert any financial agreement reached into a court order.
Collaborative law, in my view, provides clients with a more supportive experience.
The benefit of collaborative law is that the practical arrangements of when, where and with whom can be made to suit the couple. Everything is in private and the process allows for very innovative outcomes. The collaborative process centres on a series of round table meetings and it is possible to involve financial advisors, accountants and counsellors if needed.
All advice given by either solicitor is in front of both clients and there are no unpleasant letters received out of hours.
Arbitration is a relatively new process within the family law arena. It is possible to arbitrate on some children matters, financial proceedings and, as I briefly mentioned at the beginning, since the 4 September 2017 in relation to some international family matters. Unlike mediation and collaborative law however, the process is used when the parties cannot reach an agreement.
It is in effect in a private court room. The arbiter sits instead of a judge and an award will be made.
It is possible to arbitrate a case from start to finish, just as in court, but a more interesting use of arbitration is to decide a limited, discrete issue that perhaps could not be agreed within negotiations.
Solicitors and/or indeed barristers may represent their client as in court or the arbiter can simply be sent paper documents and can provide a written award.
The benefit of arbitration is again to do with speed and choice of arbitrator. Now that the family courts are more open and court cases are much more likely to be reported, particularly the outcome of financial cases, there is the added benefit of privacy that arbitration can afford clients.
It is possible to use more than one type of dispute resolution process. For example, a couple may start off in mediation and find that does not work for them and end up in arbitration.