08 June 2016
Family Law, the Next Steps...Mediation, Collaborative Law and the Court Process
Family Law, the next steps...Mediation, collaborative law and going to court - how to choose what is right for you.
I am considering divorce, but there seem to be so many options such as mediation, collaborative law and court. How do I know what these mean and how do I choose which is right for me?
There are many different options available and just as every relationship is different, some options which may be perfect for one couple, will simply not work for others. It is always best to seek the advice of a family lawyer as soon as possible as they will go through the options with you and help you decide which may be the best for you and your family. However below is a summary of the various options available.
Mediation is a form of dispute resolution and does not involve the court in the decision making process. Mediation is ideal for couples who feel that they need some information and guidance to help them to resolve arrangements for the children and/ or financial matters. The couple attend sessions together with a trained mediator. The mediator cannot provide legal advice to the couple but will guide them through the decisions which need to be made to help them to reach a compromise and to resolve issues. It is now a legal requirement (with some exceptions) that anybody wanting to apply to the court for it to resolve issues over children or finances, should attend a meeting (called a MIAM) with an appropriately qualified mediator before lodging an application. At the MIAM, the mediator will explain what mediation can offer. Legal aid is available for those who are eligible. If it is possible for a couple to reach an agreement in mediation, it is then advisable for both parties to obtain independent legal advice to ensure that any agreement is fair and reasonable.
Collaborative law is in some respects similar to mediation as it is also a form of dispute resolution and does not involve the court in the decision making process. However it differs from mediation as each party has their own collaboratively trained lawyer to support them throughout the process. All relevant issues around separation, divorce, finances and children are discussed by the parties and their lawyers at round table meetings, with the aim of reaching an agreement which both parties feel is fair. Independent financial advisers are brought in to assist where appropriate and if the parties feel it would be helpful, support is available for the more emotional aspects of the separation both for the themselves and for their children. The couple must agree to be open, honest and respectful during meetings, however beyond that commitment, there are few rules and meetings take place at a pace and in a way which suits the couple. Fundamentally, the aim of collaborative law is to enable a couple to agree the child care and financial arrangements which they feel are in the best interests of the family with the minimum of tension and conflict and without the involvement of the court.
The Court Process
In any divorce, the court will always have a role as it has to deal with the procedural process of a couple becoming divorced.
However its role in resolving issues over children and finances will vary from case to case. In many cases there is no involvement at all with the children if a couple can agree arrangements. The situation with finances is slightly different, as even if a financial agreement is reached, be it through mediation, collaboration or just between a couple themselves with no professional input, the terms of that agreement should always be embodied in a court order, known as a consent order.
There will always be cases where it is simply not possible for a couple to agree arrangements even with professional advice and support and that is when the court becomes involved in deciding arrangements. However even once a court application has been made, a good family lawyer will continue to assist the couple to attempt to reach agreement, but ultimately if that proves impossible, a Judge will hear evidence and make a binding decision.