Staying Out Of Court
Tool Kit: Mediation
With a skilled mediator and a bit of co-operation from the couple involved, mediation has some key benefits over using a traditional family lawyer:
It can be quicker. No letters going back and forth (and costing you a packet) – you can talk face to face with the support of the mediator. Mediation usually lasts for between two and five sessions, each of about an hour and a half. However, the time it takes depends on how complicated the issues are.
Children benefit. If their parents are resolving any issues relating to the divorce or break up by searching for solutions together, this has got to be better than firing off demands spurred on by the family lawyer, who may well have your best interests at heart but what about the long term implications, and the effects on the kids? Getting divorced is like giving birth – the focus is often on the actual event rather than the years that will follow.
Less stress. Solicitors letters can often feel threatening when you are not used to legal language, and going to court is a very stressful and usual unpleasant experience. The mediation process allows you to avoid all that.
Cost – it is invariably cheaper. Time in mediation is usually charged at much less than time with a lawyer, and that’s even without needing to go to court. You can also choose how much you do yourself (providing necessary financial information for example) or bring in other professionals if you need them (financial planners, divorce coaches) – depending on your budget. People going through mediation often feel that they have more control over the costs and also the process itself.
The Government wants you to use mediation.
In the UK, If you are not able to resolve your divorce or break up without getting professional help, then the Government doesn’t want you blocking up the courts so they now insist all couples at least find out about mediation – via a MIAM (Mediation Information Assessment Meeting) – before they let you to go to court over any divorce related issues.
In many States in America and other countries around the world, Mediation is recognised as a good way to stop blocking up the overloaded court systems, and with far better outcomes for those who still need to co-parent, or not spend thousands on financial arguments that would be so much cheaper to just settle early on.
BE AWARE – some lawyers and well-meaning friends will tell you that you can’t use mediation if your are in an abusive relationship of any kind. This is JUST NOT TRUE!
You can do online mediation, use break-out rooms so you don’t even have to see your spouse. And the court process is often a playground for narcissists and doesn’t give you always the level of support you deserve. You’ll need to use specialist mediators for this work but they do exist so never close the door on this as an option.
"So I spoke to a lovely lady recently who attended one of our online Divorce Workshops, and she shared how her husband and her were offered divorce mediation through Relate but they had to agree a £2,000 cost. This put them off (not surprisingly) but now they have spent £20,000 by using lawyers. And it's still not sorted. She is now going to be chatting with one of our lovely Financial Planners, boot-camping herself for mediation - which luckily her husband is still open to - and they shouldn't have to spend £2,000 for what could be just one or two sessions! If a mediation is stalling - use an arbitrator. Like a private judge - no barristers involved. Can bring resolution to a disputed area and allow the mediation to carry on... or complete it. Arbitration doesn't cost £2,000 either if it's not highly complex financials etc. Plus you've already got that all together beforehand (which most people don't) if you've worked with a financial planner." Suzy Miller: Divorce Strategist
Tool Kit: Legal – Collaborative Law
Collaborative lawyers keep you out of court. In fact, you can’t go to court if you use a collaborative lawyer. Should negotiations break down between both parties, and a couple decide to go to court, then they have to get different lawyers to represent them. The advantage of this is that collaborative lawyers have a huge incentive (as do the couple) to find a sustainable and acceptable agreement on all matters relating to the divorce.
Collaborative law differs from using only mediators mainly in that the couple have immediate access to legal advice ‘on tap’ during the sessions. So if you wanted to pop out of the room and have a private chat with your collaborative lawyer, that would be fine, which is not so easily the case with mediation as the mediator must remain completely impartial. So it’s like having someone helping you ‘in your corner’, which can be useful, but also it must be remembered that the collaborative process thrives on the same elements as mediation does – full financial disclosure, and clear communication.
Just because someone is trained in collaborative law does not mean they always work ‘collaboratively’ and it is important to choose your collaborative lawyer carefully. This is of course the same with choosing a mediator or any other professional. Make sure they share your commitment and passion to the positive outcomes of your divorce or break up such as a strong parenting partnership agreement or being comfortable that the final financial settlement was fair.
You are in charge or your divorce, not the lawyers. There are some excellent professionals out there, so don’t just settle for someone who has the job title if you don’t really feel confident that they will be someone you want to work with.
Tool Kit: Legal – Family Arbitration
Family arbitration can be a powerful tool in the peace toolbox, whether you are divorcing in the UK, US, Australia, Canada – or anywhere else arbitration exists. Compared to going to court, arbitration – also known as having a ‘private judge’ – saves the money and a whole load of time.
What’s really important, is that by choosing your own specialist judge for your financial or your co-parenting dispute, it keeps you both in charge of the process. The arbitrator you choose may be far better equipped to make a binding legal decision than a judge your are assigned through the courts, who may only limited training in some aspects of family law.
You can pick your own times, work online, and get the whole thing sorted so much more quickly. And because you probably need barristers the overall cast can be significantly less than going to court.
Family Arbitration is still the new kid on the block in the family law community in England and Wales, and the potential benefits to divorcing clients are immense. My interest in finding out more about family arbitration was originally sparked by a conversation with New York Mediator Ken Neumann, who described how useful arbitrators could be in un-sticking a mediation process. “Sometimes,” he explained to me, “the couple can’t agree on one issue, and they just want someone else to decide for them.”
Family Arbitration can rescue a mediated divorce from crumbling into a nasty expensive court battle. Also this can be true for collaborative law if you get stuck on something and just can’t agree.