Background
This week is DR week. For those of you who are not in the know the DR stands for it dispute resolution. To be more precise DR covers all forms of out of court dispute resolution. It is now being used more and more by separating couples.
It has long been recognised by the professionals who advise people going through relationship breakdown that for many of them the court should be the option of last resort. Although much has been done to raise public awareness of non-court based resolution processes a recent piece of research revealed that 45% of people asked had heard of none of the non-court based processes. Many of the people asked thought that instructing a solicitor meant going to court and did not realise that most family solicitors engages in out of court negotiations and many are trained as mediators arbitrators and collaborative lawyers.
Since April this before a court application, regarding financial matters on the breakdown of marriage or where there is a dispute about children, can be started it has been compulsory for that person (except in limited circumstances) to attend a mediation information and assessment meeting ("MIAM") with a mediator accredited to undertake MIAMs. The meeting will involve a discussion to explore whether any non-court process might be suitable for the couple. As the name suggests the person conducting the meeting will not only be giving information but will also be assessing whether the matter is suitable for a non- court based process. Although the MIAM meeting is compulsory mediation, collaboration and arbitration are all voluntary. Each process has its own distinct features.
The task of educating the public about non court based processes is still ongoing The Resolution Family Dispute Resolution Week is in its third year and will take place from 24-28 November this year. This awareness-raising week aims to highlight the alternatives to court for separating couples and their families. The goal is that the public and individuals who are going through relationship disputes are as aware of mediation, collaboration and arbitration as they are of the court options.
Processes
Whichever process is chosen it is a requirement in financial matters for both parties to make a full and frank disclosure of their capital and income. If either party is concerned that this will obligation will not be met voluntary then a non-court based option is not suitable. Once there has been a full disclosure, following a court order, the parties may choose mediation or arbitration.
In recognition of the fact that issues arising at the time of relationship breakdown are not just a legal matter, the lawyers often work as part of a multidisciplinary team. The team will be bespoke to the situation and may include financial advisors and professionals that can assist and advise on the emotional aspects of the breakdown.
Mediation
Mediations are conducted either by a sole mediator or by way of co-mediators (typically a lawyer and a family mediator). The mediator is neutral and does not provide any legal advice. (S)he can provide information, but the parties normally have the benefit of legal advice from their own solicitors throughout the process.
The parties attend meetings with the mediator(s). Once disclosure has been completed options are explored to assist the parties in seeing how things might look if certain courses of action are follows. If the parties reach a solution a document called a memorandum of understanding is prepared. The parties take this off to their solicitors and a consent order is prepared and sent to the court for approval. Apart from the financial disclosure mediation is confidential.
If the mediation breaks down the parties may decide to go down the court process but can come back to mediation at a later stage. Often the court will adjourn a matter to enable the parties to explore a solution through mediation.
Collaborative Law
Collaborative Law is also conducted by way of a number meetings. The parties' lawyers must be each be collaboratively trained. There are now over 2,000 collaboratively trained lawyers throughout the country. At the beginning of the process the parties and the lawyers sign an agreement whereby the parties commit to trying to resolve the issues between them without going to court. This clause in the agreement has proved extremely useful in keeping the parties in the negotiations when the going gets tough and can be of great assistance in getting the parties to look at the problem imaginatively finding a solution that is acceptable to them both. When agreement is reached a consent order reflecting that agreement is prepared by the collaborative lawyers and sent to the court for approval.
Arbitration
A fundamental difference between arbitration on the one hand and collaborative law and mediation on the other is that the arbitrator will impose a decision on the parties and this will be binding. Whereas the other two processes assist the parties in reaching their own agreement.
Arbitration is suitable for all financial issues in dispute or can be used for discrete financial issues. It is not available for disputes regarding children. The parties will normally instruct solicitors. An Arbitrator is then appointed. The parties will decide whether the arbitrator makes his/her decision based on documents and written submissions or whether (s)he will hear oral evidence. The process is confidential. If there is to be oral evidence a time and venue that is convenient to the parties can be chosen. This process is extremely flexible and avoids delays that are currently being experienced in the courts.
Conclusion
So when embarking on the journey that starts with the breakdown of a relationship it is important that you keep calm and consider whether it might be best for you, your partner and family to mediate collaborate or arbitrate.