Mediation/Collaborative

Rather than deal with areas of dispute by rushing off to court, there are several alternative dispute resolution methods available, two of which being mediation and participation in collaborative practice.

The two have similarities, but are at the same time very different. It is important that your suitability for either process is carefully screened, as if there is a power imbalance between the parties, or there has been a history of domestic violence, the process may be wholly unsuitable for you.

As of the 22nd April 2014 it is a compulsory requirement when issuing many types of application to the court that the applicant has attended a MIAM (Mediation and Assessment Meeting). The court has powers to refer the matter back to mediation if it feels that this is a more appropriate way of attempting to reach a resolution to the dispute before it rather than by using the court system.

Mediation is aimed at easing the process of relationship breakdown, be it separation or divorce, and assists a couple, through a process of facilitated meetings, to arrive at a fair and hopefully long lasting arrangement regarding finances, or children, or both.

Mediators are entirely impartial, and neither take sides nor advise you, but they do provide expert information during the mediation process. Their role is to offer the opportunity to communicate, and to reduce recrimination, assisting the parties to negotiate and make positive plans for the future. Whilst any agreement reached in mediation is not binding, it is usual for parties attending mediation to take legal advice in-between mediation sessions, and agreements reached are usually then drawn up by your respective solicitors and put into a legally binding format, be it a draft consent order, separation agreement, or some such other documents.

You do not have to sit in the same room as your ex. Shuttle mediation can take place, where the mediator goes from one room to the other, and thus you may not have to face your ex if you are not feeling up to it.

Mediation is not suitable in all cases and, in particular, where there is a history of threatened or actual violence then it is most usually inappropriate for mediation to take place. The mediation providers will, however, undertake initial assessment meetings (which you attend alone unless you are happy to attend jointly with your ex) and are trained in screening processes which will enable them to identify when mediation would not be suitable.

If mediators believe that mediation would be suitable for you, you will be offered an appointment to see if matters can be resolved by negotiation with your former partner, and you will be asked to provide certain information in readiness for the first meeting.

The cost of mediation varies depending on which mediation agency is used, and we are able to advise you on the appropriateness of the various mediation providers in your area in order to select the appropriate service for you.

Collaborative practice.

Another way of dealing with a family disputes is participation in the collaborative process. In the collaborative process, each person appoints their own collaboratively trained lawyer, with all negotiations taking place by attendance at meetings between both of you and your respective lawyers.

Each of you will have your own lawyer who will be by your side throughout the process, and therefore you benefit from immediate legal advice, such advice being given in front of your partner and their legal representative. The process works on solving the particular problem “on the table”, is driven by you, and is controlled by you as clients. You enter into an agreement not to take your dispute to Court, not to bring blame to the table, to work at the slowest persons pace, and should the process breakdown then certain rules are in place preventing the same lawyers from then taking your case to Court.

How does the process work?

Usually you will both meet your respective collaborative lawyers, will discuss the options and processes available, and will decide whether or not the practice is of interest to you.

It is usual that you will both individually meet with your respective lawyers to discuss what to expect in the collaborative meetings, which are usually referred to as four way meetings as they normally take place between you and your partner, with your respective lawyers in attendance.

The two lawyers involved will liaise directly so as to ensure that each is aware of any issues which may get raised which are difficult, and part of our collaborative training involves recognising what are known as hot spots i.e. issues which are difficult for the participants to deal with, and accordingly arrangements can be put in place to best handle these particular issues. The lawyers will liaise as to how meetings went, how they can be better handled next time, what issues arise which need careful consideration and handling etc. It is a process aimed at breaking free from the constraints of usual negotiation. Since when did the court necessarily achieve the right outcome for the parties?

At the first four way meeting the lawyers will make sure that you both understand that you are making a commitment to working out an agreement without going to court, and you will sign an agreement known as a participation agreement.

The effect of signing this document is that should you wish to pull out of the collaborative law process, each party has to terminate their relationship with their existing lawyer and seek alternative advice from an entirely separate firm. There is obviously an increase in cost, not to mention having to start again in building up a relationship with your lawyer, and that is an incentive to keep within the process. Accordingly, your collaborative lawyer is not then allowed to represent you in any subsequent process through the court other than the lodging of any consent order which reflects any agreement reached in the collaborative process.

Having signed up to the participation agreement, you and your partner are then invited to share your own objectives in choosing the process, and you will all work together to plan an agenda for the meeting and subsequent meetings which follow. You may be invited to draw up an “Anchor Statement” which lays down what it is that you are hoping to achieve by entering into the process, and why you chose the collaborative route.

This is your process, and you are in total control as to what is discussed and when. The role of the lawyer is entirely different to any other area of law.

The agenda for the first meeting will depend upon your own individual circumstances but might typically include a discussion about how the children are responding to separation, immediate financial arrangements to be put in place, and indeed may even cover how to fund participation in the process itself.

Subsequent meetings will deal with the various issues which you and your partner wish to discuss. It might be necessary to look at involving other professionals by inviting them to attend the meeting, such as specialists in pensions, or financial planners, or people trained to assist children in understanding and coping with the change that the divorce or separation will bring to their lives.

Accordingly the collaborative law process enables you to participate in an entirely tailor-made process that is not restricted by the various checklists and criteria which are laid down in the litigation process, and thus you can approach matters however you think appropriate.

What we have observed in this process is that it enables parties to work together to create an outcome, and that in turn enables them to retain as good a relationship as is possible. It can be a healing process, and often brings people much closer than would otherwise be the case were they to choose a more “traditional” way of dealing with their separation.

The final meeting

In the final meeting documents detailing the arrangements upon which you have agreed are signed, and your lawyers will talk through anything else that needs to be undertaken in order to implement these arrangements. Sometimes a strict timetable for implementation can be discussed, such as the selling of a family home, the issuing of divorced proceedings, or such other issues. The process is, however, entirely flexible, and one of the rules of collaborative practice is that the whole process works at the slowest person's pace, thus ensuring that nobody is forced into making decisions until they are ready.

Because the collaborative process is not driven by a timetable imposed by the court it is, to a large extent, based around your family's individual needs and priorities.

Both Vic and Graham are qualified collaborative practitioners. We are always happy to chat through the process in further detail and answer any questions (if we can) that you may have.