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Mediation & Collaborative Law

Following a relationship breakdown many couples are resolving issues concerning their property and the arrangements for their children by engaging in mediation or the collaborative law process.  These options involve the couple meeting face to face and being assisted during the meetings by either a mediator or their collaboratively trained lawyer this way, agreements are often achieved without the expense and stress of court proceedings.  Everyone using mediation or the collaborative law process must be assessed to confirm their circumstances are suitable.

Unhappy married family couple getting divorced in asian attorney lawyers office, husband signing decree paper giving permission to marriage annulment dissolution, divorce settlement concept

Mediation

To engage in the mediation process the couple usually meet with a mediator who remains independent and impartial. The mediator will help the couple to consider the issues which need to be resolved and assist with exchanging relevant information between the couple. The mediator can consider the possible outcomes which could be ordered by the court to assist the couple to reach an agreement.  Mediation works best if the couple also take separate independent legal advice during the process. If an agreement isn’t reached, it is possible to make an application to the court to resolve the issues between them.

If the couple are able to reach an agreement, the mediator will prepare a Memorandum of Understanding which is a summary of the couple’s agreement. This document may then be presented to the couple’s independent legal advisors who will convert it into a legally binding document. 

Sometimes only one meeting with the mediator is required to achieve an agreement however, in most cases further meetings are needed.  Legal Aid may be available in some circumstances. 

Collaborative Law

With the collaborative law process, each person will instruct their own collaboratively trained lawyer to provide support and legal advice during a series of ‘four way’ meetings.  Generally, between 2 and 5 meetings will be required where the focus will be on working together to find solutions. 

At the outset the couple and their lawyers enter into a written agreement to confirm their commitment to resolve all issues within the collaborative law process. It is agreed that if the collaborative law process breaks down and court proceedings are commenced, the same lawyers would not be able to continue to act for the couple and different lawyers would need to be appointed. 

The couple remain in control of the collaborative law process, they decide which issues need to be resolved and when the meetings take place.  The couple agree that all issues will be discussed openly during the meetings. The two lawyers will provide advice during the ‘four way meetings’ and will collate and provide the relevant information.  Independent ‘neutral’ professionals can be invited to attend the meetings to advise the couple and present options for further consideration. Financial planners, accountants and family therapists often form part of the collaborative team.  The likelihood of reaching an agreement within the collaborative law process is very high and once this is achieved, a legally binding agreement can be prepared by the lawyers involved.

Whether an agreement is achieved through mediation or the collaborative law process, the couple themselves remain in the ‘driving seat’ and are directly involved in shaping the future arrangements for themselves and their families. When people are actively involved in the decision making process, the agreements reached stand a very good chance of being effective and long lasting.  Another bonus with both options is that the likelihood of the couple remaining on good terms is far greater, compared with couples who engage in court proceedings which are often stressful, expensive and can result in an unpalatable solution being imposed on the couple by a judge.

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The Importance of Listening

One of the most common features of working with divorcing couples, is that of discussing, finding out and encouraging the importance of good listening.

Often, we hear people say that they are good listeners and friends and relatives who might be supporting you through this difficult process, perhaps will offer you their ear whenever you might need to offload or discuss issues that have arisen.

Conversations with your ex concerning the house, finance and most importantly the children are inevitable at some point.

These conversations arise at a time when emotionally, we are not best placed to hear what needs to be said.

Divorce can often result from a breakdown in communication that has been building for some time, coupled with other relationship difficulties.

Below are some tips to consider when communicating with your ex:

LISTEN:

  • How do you know when someone is listening to you?
  • How do you listen?
  • What are the optimum conditions for you to listen fully?
  • If you are upset, frustrated, or angry, your listening skills will be impaired.
  • If you find yourself thinking about something else or how you might respond whilst others are still talking, you have stopped listening fully
  • Try to keep your focus on what is being said
  • Ensure that the time is convenient for you both to talk. If one of you needs to get away then your focus will not be on the present situation.

Once the other person has stopped talking.

CHECK:

  • To make sure you have fully understood, e.g. “Ok so what I heard you say was……………”
  • It is not unusual to miss important points during ‘emotional’ conversations, especially with your ex.
  • Keep checking until you fully understand what has been said.     

PAUSE:

  • Take a moment to reflect on what’s been said.
  • You might need more time, try not to feel pressured into making your reply immediately.
  • Rearrange another time, convenient to you both to continue the conversation if you need more time.

Once you have considered your response

REPLY:

Try to

  • Use ‘I’ Statements, e.g. “I think, I feel”
  • Consider your ex’s position, put yourself in their shoes.
  • Keep calm-it’s easy for things to escalate.
  • Consider your children’s needs.
  • Seek help if you are struggling. Consider a relationship therapist or mediator.
  • Check that your ex has understood, “can you please repeat back what you’ve heard?”

Some final points to consider:

What you’re going through is tough. You will at times feel very emotional and having a rational, calm conversation with your ex is probably the last thing you want to do.

Remember, no one can be made to do anything that they don’t want to, try to offer suggestions rather than make demands.

Control ‘your end’ of the conversation (AND the behaviour that goes with it) and be the best listener you can be, for the sake of your children.

 

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Can Collaborative Divorce Save Time And Money As Well As Protecting Families?

There is no question that divorce and separation is a time of high stress and emotion for all parties involved, including children who are caught up in proceedings.

What is clear from research carried out by Resolution is that parties who separate or divorce using the Collaborative process properly, can often minimise much of this stress and emotional anxiety.

There has been much said and written about traditional family litigation being phased out in preference for alternative ways of resolving problems, with lawyers increasingly encouraged to work with parties to find amicable and constructive ways forward in divorce and separation matters.

Whilst the majority of clients that we now encounter respond to this kind of approach, we also acknowledge that divorce is still a difficult and painful process. Those of who practice Collaborative Family Law, can see the obvious benefits of using this process for the above reasons, but could this actually provide additional benefits in terms of time, money and future family relationships?

By entering into the Collaborative process, parties to a divorce or separation are assisted by Collaborative trained professionals who will assist them in resolving their own issues in an open and constructive environment. It is this environment that can save time and money, not only through the process, but thereafter.

By also committing not to enter into court proceedings, this also has the added advantage of removing the threat of such proceedings over the parties and encourages people to work together to find lasting outcomes for themselves and their families.

Obviously, by entering into open and constructive discussion and avoiding court proceedings, this can save considerable time and cost in terms of the processes that people employ.

However, over and above this, the way that parties interact with each other during the Collaborative process, in terms of reaching agreements around their separation, financial affairs and their children, creates a framework for future discussions and a format of resolving disputes that can work to protect the best interests of families.

When looking at the benefits of the Collaborative process, we believe that these can fairly be summarised as follows;

The protection of children

Children are often impacted by contested divorce proceedings and anyone who has gone through the court process knows how difficult this can be. By collaborating to find the best solutions for themselves and their children, parents often find a new way of communicating that is centred around the best interests of their children in the future and this can take away a huge amount of the potential distress that conflict often causes.

Saving time and money
When compared to litigation, the Collaborative process will invariably be considerably cheaper and quicker. Traditional litigation can often cause parties to become entrenched in their positions making the process slower and even more expensive over time.

The protection of extended family
Whenever there is litigation, inevitably, extended family and friends become engaged and are often forced to choose who they support. This can have long-lasting impact on both family and friends and ultimately damage longer term relationships not only with the parties but also the children at the centre of the dispute.

Privacy

In an increasing age of transparency, many clients want to keep their divorce and financial affairs out of the public domain. The Collaborative process is entirely confidential and can maintain everyone’s privacy.

In summary, we believe that the Collaborative process achieves not only a high success rate in terms of outcome, but more importantly meets parties needs and requirements in terms of preserving their dignity and respect, as well as being a timely and cost effective process . It can also have additional benefits in terms of the protection of family relationships long after any divorce or separation is concluded in a legal sense.

Contact details of qualified Collaborative professionals in the Black Country area who can provide you with more information can be found here

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Separating without Blame

The current law provides that the ground for seeking a divorce is irretrievable breakdown of the marriage based on one of five facts being adultery, unreasonable behaviour, two years desertion, two years separation with consent and five years separation.

Resolution, the national body of Family Lawyers and Practitioners, has long campaigned for reform by introducing no fault divorce in order to reduce conflict and support separating couples to resolve matters amicably.

Nigel Shepherd, the Chair of Resolution reports that Resolution’s campaign has led to a high level of media coverage and public declarations of support for no fault divorce.

A report in “The Economist” agreed that it was time to introduce no-fault divorces and went on to say:

“sorting out the division of assets and arranging for the…future care of children are always the hardest aspects of ending any marriage. Eliminating questions of who is to blame for the split would allow those involved to focus on dealing with these”.

This campaign for reform is supported by the public with a YouGov poll published in March 2017 reporting that 69% of the public want to remove blame.

We at the Black Country Collaborative Group believe that the introduction of no fault divorce will help separating couples to resolve issues relating to their children or division of assets in a constructive way without divisive arguments about who is to blame for the separation.

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Is Mediation always the best way?

There won’t have been many people who watched BBC Two’s Mr & Mrs: Call the Mediator without wincing.

Watching two separated adults tearing each other apart on national television isn’t everyone’s cup of tea. But what the three episode series showed is that there are alternative ways to end a relationship, even if doing it in the full glare of the television cameras is potentially ill-advised!

Following the introduction of the Children and Families Act 2014, separating couples, before making a relevant family application, must attend a family Mediation Information and Assessment Meeting (MIAM). The aim is to reduce both the potential trauma and cost of prolonged court battles between couples, which is particularly important when there are children involved.

The BBC Two programme showed couples (sometimes not even able to be in the same room) trying to resolve issues such as where their children would live, who stayed in the family home and financial settlements.

The scenes featured in the series showed why it is important to consider alternative, out of court, ways to resolve issues following a break-up. Court proceedings, by their very nature, only increase the stress and emotion of the situation.

In a court case, the judge will have much wider discretion, and can impose an agreement on the parties that neither of them are happy with.  That’s where Mediation can be beneficial, as it gives both sides much more control over the outcome and they can reach an agreement that may be different to what a Judge would order.

People are often concerned about going to mediation because they’re worried about being bullied or that the agreement they reach won’t be fair.  In those circumstances, as an alternative to mediation, many couples may prefer a Collaborative legal approach which aims to create a smoother path to divorce.

Collaborative law is where separating couples have face-to-face negotiations, supported by their solicitor in the room with them. It encourages communication, which in turn reduces bad feeling and hostility between the separating couple and is particularly suitable where children are involved. I would encourage people, where possible, to consider a collaborative law approach in the first instance.

Resolving matters collaboratively enables a more constructive and flexible approach that can produce a far better outcome for all involved.  Contact details of qualified solicitors in the Black Country area who can provide you with more information can be found here.