Gently Does It – Collaborative Law and Mediation
For many years the English family law system has steered away from harsh, confrontational methods to resolve family law disputes. Instead, couples have been encouraged to work out financial settlements and arrangements for children between themselves, as far as possible.
The Law Society Family Law Protocol requires family solicitors to explain to clients the alternative methods of dispute resolution. In addition, if clients wish to take their case to court, they will be required to attend a Mediation Information & Assessment Meeting (MIAM). The mediator will need to sign a document for the court stating that both parties have considered mediation as a method to resolve their family dispute.
Obviously, this cannot work for everyone. For example, if domestic violence or abuse has been experienced by some or all family members, alternative disputes resolution methods such as round-table negotiations and mediation are highly unsuitable and could lead to victims of abuse experiencing unnecessary stress, perhaps even putting them in danger.
But for most couples, dispute resolution methods such as collaborative law and mediation empower parties to a divorce and/or child arrangement negotiation, to work out solutions between themselves.
What is collaborative law and mediation?
Collaborative law and mediation are both non-litigious methods of resolving family law disputes. Although they are both different – the goals are the same – to help separating couples determine their futures and make the best decisions for their children.
Collaborative law
The collaborative law process involves a couple instructing a collaborative lawyer and entering into a Collaborative Participation Agreement.
Adversarial court proceedings are not part of the process. Parties to the Collaborative Participation Agreement agree if they are unable to agree on matters and decide to issue court proceedings, they will dispense with the services of the collaborative solicitors and instruct new lawyers to take the case forward. This helps focus everyone involved in the process to find “workable solutions.”[1]
In addition:
- the Collaborative Participation Agreement confirms that the parties will negotiate in good faith and in a transparent and open way
- the issues are often resolved in face-to-face meetings (called a four-way meeting) with both the parties and their solicitors present
- correspondence between solicitors will generally be kept to a minimum
Solicitors who practice collaborative law are specially trained. Their role differs to that of a solicitor involved in traditional family law proceedings:
A collaborative lawyer will:
- discuss not only the facts and the legal situation with the client but also try to understand the client’s motivation and what will work for them long-term
- help their client to prepare an agenda and manage it
- be able to manage any conflict between the couple during meetings
- assist the parties in negotiations, but allowing parties to do much of the negotiation themselves
- organise/audit disclosure and give legal advice both inside and outside the four-way meetings
- prepare all the documents relating to the case
Mediation
Mediation involves a couple working with an impartial third-party who helps them arrive at an agreement regarding family law disputes.
Mediators are highly-trained. The main features of the process are:
- mediation is voluntary and completely confidential
- the parties to the mediation dictate the pace of talks and much of the process
- once an agreement has been reached, the parties’ solicitors will check the negotiated settlement and if happy with it, draft a consent order and submit it to the court—the court will be told in a joint narrative letter that the agreement reached was via mediation.
Final words
Collaborative law and mediation are not suitable for all couples. But for parties who are willing to enter into a gentler approach to resolving their family law disputes may find that not only is the resolution process less stressful, but the solutions they work out between themselves, stay strong long into the future.
Bennett Griffin Is an award-winning solicitors based in West Sussex, with offices in central Worthing and Ferring. Our experienced and specialist solicitors offer a comprehensive service and will work with you in an honest, considered and practical manner. All our family law team are members of Resolution and the team also includes a Family Mediator and Collaborative Lawyer. Please contact us on 01903 229 999 or by email at info@bennett-griffin.co.uk for more information.
The information contained in this article is for general guidance only and is not intended to be legal advice. Professional advice should always be taken on the application of the law in any particular situation.
[1] Bull, A Hanna S, Putting Your Children First, P.C.B. 2016, 6, 253-259