Today marks the beginning of Resolution's Good Divorce Week, a campaign that aims to help families resolve issues away from court and as amicably as possible. This year, the emphasis is on the crisis in the family courts, with significant backlogs leading to families waiting long periods to obtain a resolution to financial and child arrangements, increasing stress and potential acrimony. Many separating couples are unaware of the numerous alternatives that exist to going to court or think that non-court dispute resolution is not suitable for them.
Claire Yorke, Head of the Family team's Alternative Dispute Resolution group, seeks to de-mystify the options and explain why they can be the best route for many families.
What is mediation?
Mediation involves discussion facilitated by a neutral mediator with a view to reaching an agreement. The process is voluntary and confidential, and the mediator will be entirely independent. Whilst the mediator will manage, facilitate, and encourage discussions, a resolution can only be achieved if both parties agree.
What is Early Neutral Evaluation?
An independent practitioner with appropriate experience can be appointed jointly by a separated couple to provide an indication regarding issues in dispute. This could help parties get a "feel" for how their case might play out if they went to court and assist in negotiating an overall agreement. This process is most used in cases involving disagreements regarding finances, and, even where court proceedings have commenced, can take the place of the financial dispute resolution hearing in court.
My ex and I aren't on good terms – will mediation work for us?
It is not uncommon for tension between parties, for one party to be less confident expressing their views or for the parties to have different views. The Mediator's role is to ensure that both parties are heard and that the discussions progress in a balanced and constructive way. Under the mediation voucher scheme launched by the Government, more than two-thirds of cases have reached a whole or partial agreement outside of court.
My case is complicated, is it better that I just go straight to court?
Many people, and their advisors, remain reluctant to engage in ADR, believing that an issue may be too "complex" or the relationship between the parties too fraught, for anything other than a Court imposed resolution to be feasible. Where it is safe and appropriate to do so, everyone should look to ADR as a more private, bespoke and solution-focused resolution to their issues. Mediation, arbitration, Private FDRs or Early Neutral Evaluation can find solutions that enable parties to move forward with confidence.
I'm considering separating from my partner, but seeking a lawyer feels like an aggressive step at this early stage. Will it make things worse?
Early intervention and legal advice are the key to supporting families through times of transition. This could be providing discrete and bespoke advice on relationship difficulties, supporting families through issues such as addiction, educational disputes, family relocation, personal reputational issues or parental conflict. Clear, solution-focused advice which draws on therapeutic and clinical resources can help families to navigate their way through issues in a constructive and more positive way. If advice is only sought after the communication has significantly deteriorated, it can be harder to resolve matters amicably.