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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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Is my case too big for Collaborative?

I am often asked the question as to whether the circumstances of a particular case would be suitable for a collaborative solution or whether the case if too big or the circumstances not right.

In short, I do not believe that there are many cases, if any, that are not suitable for collaboration, provided that the parties and their lawyers enter into the discussions in the right way.

Recently, I have been involved in a divorce case which has been resolved using the collaborative procedure between two parties with total assets of somewhere between £10 million and £12 million.

This was further complicated by the fact that there was a trading business of which both parties were equal shareholders with some disagreement over the ongoing treatment of this business and its day to day running and operation.

Whilst this kind of case may not for the fainthearted, it is important to remember that with two experienced collaborative lawyers, a case like this is not impossible and can be dealt with.

What helped in this case is that both parties had seen friends go through more “traditional” divorces and witnessed first hand the consequences of litigation and bitter negotiation that only served to increase both the animosity and cost for everyone involved.

What both parties recognised was that they had two children who they both wanted to put first in their consideration’s and both of the parties were sensible and experienced entrepreneurs who could see the benefit of dealing with their divorce in a different way.

Having both instructed experienced collaborative lawyers, the first step was to speak to both parties as to their reasons and motivations, before the collaborative lawyers then spent some time together working out where they saw issues between the parties and preparing themselves for a face-to-face meeting.

Of particular importance was to get the agenda right to the very first meeting.

The reason I say this is that both of the collaborative lawyers recognised the power of getting early agreement.  What became apparent quite early was that there were a issues where one or both parties expected there to be disagreement, but it appeared that matters could be resolved quickly by agreement between them.  These items went on to the agenda early so that the parties could get used to agreeing things that they might have thought would be difficult.

More challenging matters then appeared towards the middle of the agenda, when the parties had already got into a culture of agreement between themselves.

Whilst I am not pretending for one moment that this was an easy process for either party, or their lawyers, the benefits of reaching agreements in this way are huge.

By both parties preparing well for that first meeting, as well as reaching some really sensible conclusions around the business, around 90% of the case was dealt with and resolved at that first meeting, which of course had a huge impact on the saving of legal and accountancy fees.

Whilst the case is not fully concluded and there are still some finer details to be ironed out, what it does show is that by taking a creative and constructive approach to these kinds of issues, individuals and families can reach fair and lasting solutions in an efficient and cost-effective way by using the collaborative process.

It is my opinion that cases are few and far between that do not fit into this model, provided the willingness is there to enter into this kind of process and the right level of support is provided by the collaborative lawyers and financial neutrals that need to get involved.

Contact details of qualified solicitors in the Black Country area who can provide you with more information on collaborative practice can be found here.

 

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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.