In this blog we’re looking at the different processes that exist to help couples who are separating to resolve all the issues that crop up.  Why?  Well because it’s important you understand all the paths you can go down before you decide which one is right for you.  If you don’t want to mediate then it can be helpful to look at which process might work best for you instead.  It’s also important to understand which processes put you both in charge of what happens next, and which processes mean somebody else makes decisions about that for you.

Mediation

Mediation is a process that brings you both together to talk about what happens next following your separation.  A mediator takes you through the process and explains things so you understand where you are and what the next steps are.  The mediator can also help to keep your discussions structured and on the same point before moving forward.  They can also help suggest options that you might not have thought about.   Mediation is usually the quickest and most cost efficient way of resolving issues.  You are completely in control of what happens next for you, and your children.  If you have worries about mediation then it’s important to note that mediation is a really flexible process and it is possible to have any of the following safeguards put in place:

• You and your ex-partner arriving and leaving the meeting separately so there is no chance of you meeting in the car park, or being asked about things you said.
• You can mediate online via a video conferencing facility like Zoom so you are in separate places during the meeting
• You can mediate in separate rooms so you never come face to face.  This can be done online, or offline.  Shuttle mediation can be less effective as you’re not hearing what each other say but it can also be the difference between being able to mediate and not being able to mediate for some people.
• You don’t need to make decisions in the mediation room.  It’s a place to talk about options so you can go away and consider them, and get any legal or financial advice that you need.
• Before you write off mediation as an option ensure you talk to the mediator about the things that worry you and see how they might address the issues so you can feel reassured.  An initial meeting with a mediator takes place with you on your own and it doesn’t commit you to undertaking joint meetings with your ex partner.  It will enable you to understand the process, to find out what safeguards can be put in place and allow you to meet the mediator and to discuss the options open to you.

Collaborative practice

This process is a bit like mediation in the sense that you get together and talk about things round a table.  You are in control of what happens next for you, and your children.  But instead of having one mediator you each have a specially trained lawyer who supports you in the process and again helps to inform and structure your discussions.  It’s a very open process with lawyers giving open and not positional legal advice.  Everybody involved, including the lawyers, agrees that a resolution will be found within that process and you won’t need to go to court.

Negotiation

This can mean different things but essentially it means you both coming together to discuss what happens next to help you find a resolution to the various issues you each see.  It puts you both in control of what happens next.  It can involve any of the following (or a combination of different options):

• You both talking together either with just the two of you, or with a trusted friend or family member (or someone more arms length such as a priest or Iman) to talk about the issues and what could happen next.
• Lawyers negotiating on your behalf – but with input from you as lawyers work on your instructions, they can’t just find a solution without talking to you.
• It can also include a round table meeting with your lawyers present to negate the need to send letters.  Again this can speed things up because you can talk about things “live” rather than waiting for letters to pass between you.  Any miscommunications can also be clarified more quickly than by letter meaning they are less likely to escalate into conflict.

The above processes leave you in control of the outcome.  The processes set out below will mean someone else decides some or all of your issues for you.  This can be a tempting option when finding a solution you can both agree on feels like an uphill battle.  But remember any person deciding matters will not know you and will only have had access to certain pieces of information about you.  Neither of you may like the decision they make and you have then lost the ability to make your own compromises.

Court

Most people have some level of understanding about the court process.  It involves the Judge deciding what happens next for you.  Sometimes people are not aware of the fact that there are usually 2 or 3 court hearings spread over a period of potentially a year or more before the Judge makes a decision.  It can be expensive to have a final hearing if you are instructing lawyers.  Equally having a final hearing (where a Judge makes a decision) can be daunting if you don’t have a lawyer as you usually have to ask each other questions about the information you’ve each provided (called cross-examination).  Going to court can be a stressful process as you wait for hearing dates.  Hearings can also sometimes be cancelled at short notice if there is a lack of Judges or problems at the court.  You all use the same process regardless of whether you have only one issue or many issues, and regardless of whether you have many or only a few financial assets.

Arbitration

This is a bit like private court proceedings as you appoint a qualified arbitrator (a solicitor or barrister with experience in family law who has undertaken the arbitration qualification course).   You can tailor this process more to your individual situation so if you only have a house, a pension and a salary each then you may find completing the lengthy form E unnecessary.  You can also ask the arbitrator to make a decision within a set time frame to save you waiting for lengthy court hearings.   This can mean you get an outcome more quickly but you still lose the ability to decide things for yourself.  You will also have to pay the arbitrator as well as your lawyer.

The question for all separating couples is which process will work best for you?  This will depend on various factors.  A number of processes exist because there is no “one size fits all” approach to separation.  Different situations require different processes.  It may also be possible to use a hybrid process where you use two different processes working together to help you.   Sometimes when people say they don’t want to attend mediation, what they really mean is that they want someone else to resolve the issues for them because it feels too hard.  But issues relating to separation cannot be resolved without input from both parties (save for as a last resort by a Judge making a final decision that will bind both parties) because you need to provide information about your situation to establish what options might be right for you.  For example, a couple with equity in their home of £600,000 may be able to sell this and buy two properties – one for each of them.  But a couple with equity of only £100,000 may not have this option open to them.  With regard to issues concerning your children you are best placed, as parents, to know what will work best for your children, and so using a process that enables you to come together as parents and talk about what arrangements you will put in place is likely to give the best possible outcome for your children.

In next week’s blog we’ll be pulling the threads together to help you work through the question of whether you have to go mediation and identify concerns relevant to you.  In the meantime, if you’d like support and guidance coming into your inbox every fortnight then why not sign up to our free mailing list?  You can also download our free mini guide to separation to help you understand your next steps.

Where one or both of you agree that family mediation is no longer a viable process you then have to look at what other dispute resolution process might help you to resolve all or the remaining issues (where you have found common ground on some issues).  If a process where you both determine the outcome is still a viable option then you can look to a different process, and a different level of support to help you finalise the outcome.  Resolution have a guide which explains all the different processes that exist to help couples who separate to resolve all the issues that crop up.

If you are unable to work together, or to see what is the right outcome, then you may need to use a process where a qualified person makes a decision for you as to what the outcome should be.  This includes the court process and also arbitration.  Most people have some understanding of the court process.  If going to court is like having an operation on the NHS then arbitration is like going private.  Everyone uses the same process in the court system whereas the process can be tailored to your individual circumstances in arbitration.  Arbitration can be used to decide issues concerning children or money and the arbitrator can give a ruling on all issues or just the issues you haven’t yet resolved.  We have prepared a table below on the pros and cons of arbitration and the court process to help you understand the difference.

Court Process

Pros:

You only have to pay a fee to use the service. There are no other fees for using it.

Only the court has the power to order someone to do something or to make orders protecting someone.

It gives you a final outcome.

Cons:

The same process is used by everyone regardless of whether you have only one issue or lots of issues, £5 or £5 million. This may mean that you undertake steps that are unnecessary for you.
The courts are struggling with the volume of work and this has led to lengthy waiting times for hearings.
Attending court can be a stressful experience especially as you may well end up waiting with your ex partner in the same waiting room.

Arbitration

Pros:

The process can be tailored to your circumstances so you don’t take unnecessary steps and you get the right experts to help you resolve issues.

It is generally a more pleasant experience to attend the solicitor or barrister acting as your arbitrator’s office rather than the court room.  You will also usually have a separate place to wait to your ex partner.  You may also be able to use a separate room to consult with your lawyer if you have one.

The process achieves a final outcome as the award of any arbitrator is automatically lodged with the court and given the force of a court order (there is a recognised process for this).

You can often achieve a resolution much more quickly using the arbitration process.

Cons:

You will have to pay the arbitrator’s private fees.  These can vary significantly.

Both parties have to agree to going to arbitration so you won’t be able to use the process unless both you and your ex partner agree to do so.

We hope this helps you to understand your options in the event of a resolution not being achieved in family mediation.  If you are concerned about progress in your family mediation meetings then talk to your family mediator about how they think you’re doing and what other support or information might help you both to move forward.