Whatever the trigger for a couple taking such a step, divorce is never an easy or pleasant experience. But there are approaches which can make it more straightforward and somewhat less personally taxing, particularly if there are children involved.
Mediation and collaborative law are two possible approaches. A mediation process can be a valuable tool for helping couples hammer out the finer practical details of their separation in a secure environment, and with a view to protecting the dignity of both parties involved.
Part of being a family lawyer is being able to assess which approach will be most appropriate for the circumstances. Your counsel should be able to demonstrate experience in a range of approaches, as well as insight into your situation. It always helps to be armed with an understanding of your options so that you can make better-informed decisions.
Here is a quick introduction to the areas you'll need to think about when deciding what the right approach is for you:
1. Not all mediators are trained lawyers and vice versa. Mediation is a specialist skill set which requires training and ongoing professional development. While many family lawyers are trained in some form of mediation, this is not a prerequisite for practising family law. Similarly, not all mediators are legally trained, and mediation agreements are not in themselves legally binding. Sometimes it isn't necessary to involve lawyers in a separation - particularly if there are no assets to divide.
2. Consider which areas mediation will and will not deal with. While in some cases mediation can be used for the entire process, it is worth noting that mediation can also be used on an almost 'modular' basis. That is, it can be used to agree on child care arrangements but leave shared assets for negotiation by lawyers, or vice versa. Make a list of what you need to split up and decide which areas are likely to be contentious. Discuss these with your counsel, who should be able to advise on which areas are best mediated, and which are not.
3. Mediation is not suitable for every situation. Mediation tends to be most useful for relationships where children are involved, or when the breakdown of the relationship is genuinely mutual. In these circumstances, mediation can help a couple consider all the practicalities of the split, as well as agree on some workable solutions for the future. It can add a layer of security and a framework for working together in future without undue tension. However, where the circumstances of the breakup are particularly fraught, or when issues such as domestic violence exist, mediation is not always the best option.
4. Accept that you will need to compromise. Mediation by its very nature is a give-and-take process. It will necessarily involve a bit of compromise on both sides, but these compromises should only be for the greater good. Mediation takes a long-term view of the situation and tries to find a balance between each party's needs. Sometimes this will mean that you need to compromise, but it should never mean that you walk away feeling cheated. If that is the case, you need to consult a lawyer to review what has been decided.
5. Consider which type of mediation you need. There are different options available to you when it comes to mediation. Throughout the UK, there are family mediation services which can be used by separating couples. The advantage of a lawyer-mediator is that they have the ability to advise on the legal context in which the couple require to make decisions. Couples sometimes feel uncomfortable about making decisions about more complex issues, such as family businesses or other valuable assets, without having their own legal advice. Solicitor-assisted mediation can be useful in these cases.
6. Consider using a collaborative law process. Collaborative law is an alternative way to resolve disputes where the end goal is to settle any disagreements at the table and avoid court. It is conducted by additionally qualified lawyers whose goal is always to resolve the matter as fairly, non-contentiously, and succinctly as possible. This is usually the best option when children are part of the relationship, and can also be beneficial in keeping costs down. It is often the most positive way of dealing with family legal disputes.
If you find yourself facing divorce or separation, know that you are not necessarily heading for a battle. Mediation and collaborative law could be the key to making the ordeal as straightforward as possible. Know before you consult what your key objectives are, and feel free to walk away if you feel unduly pressured towards a particular option. The last thing mediation should ever do is make an already difficult process more so.