If you are separating from your partner/spouse and trying to resolve your finances, or are having difficulties making arrangements for your children, then mediation or collaborative law may be an option, rather than simply going to court.
So what is it? Mediation and Collaborative Law (formerly ‘alternative dispute resolution’) are alternatives to a court hearing where a Judge makes the final decision on a dispute.
The aim of mediation is for the parties to reach an agreement with the assistance of a neutral third party, the mediator. The mediator cannot give legal advice, nor can they suggest what they think is the answer. The mediator is impartial, independent and assists the parties with their discussions. If an agreement is reached, the mediator prepares what is known as a memorandum of understanding which reflects not only the discussions, but why a particular agreement has been reached. Mediation can be used for any dispute. In fact, mediation is not simply for family disputes, but is used in commercial cases, employment cases etc.
Prior to any application being made to the court (unless certain exemptions apply) to resolve a dispute the parties are required to attend a MIAMS (Mediation Information and Assessment Meeting) to assess whether mediation might be suitable.
But neither party can then be forced to attend full mediation as it is voluntary.
Sometimes mediation can assist in narrowing the areas of a disagreement even if a full resolution is not possible.
It is hoped that if the parties reach an agreement together that this is more likely to work in the longer term rather than perhaps the position whereby the court has imposed a decision on the parties that they may be unhappy with.
Whilst mediation is attended by both parties usually without their solicitor, collaborative law involves both parties and their specially trained solicitors in a series of meetings altogether to resolve the issues. A party would therefore have the support of their solicitor if they felt too nervous to attend mediation on their own. The process is still aimed at resolving the situation on a co-operative basis, but it allows the giving of legal advice to the parties in the meeting often in front of their former spouse or partner.
The aim is to cut down on traditional correspondence between solicitors and deal with all matters in the meetings in the presence of all parties. It is hoped that dealing with a dispute using this process will make it quicker, and hopefully less painful and reduces paperwork.
Collaborative Law is often suggested for cases when parties wish to enter into what is commonly known as a ‘pre-nup’, but it is suitable for almost any family dispute.
There are therefore real alternatives to consider rather than just perhaps the traditional solicitor led negotiation through correspondence or court proceedings. All processes should be considered to determine which may be the most suitable process for you. Every situation is different, and therefore choosing the right process for you is essential.
At Humphries Kirk, we are able to offer both mediation and collaborative law at our Crewkerne office.