Divorcing couples to attempt mediation before court
by Lisa Burton-Durham, February 23rd, 2011
From 6th April 2011 new measures will come into force that will require divorcing couples to undergo compulsory mediation with a view to disputes being resolved by the parties themselves.
The Justice Minister, Jonathan Djanogly, said mediation is “a quicker, cheaper and more amicable alternative” to pursuing a dispute through the family courts.
So, what is mediation?
Essentially, it is a process which involves the parties meeting together with an impartial third person, a trained Mediator, who will help couples to make arrangements and to reach their own agreements in relation to separation or divorce, children and finances.
Mediation is “legally privileged”, which means that nothing said in the context of the sessions can be used in evidence at Court, if, eventually, legal action through the Courts has to be taken. However, if the mediation is to do with financial issues, documents disclosing financial information are often produced and they could be disclosed as evidence in court later on. Confidentiality does not extend to a situation where it is clear to the Mediator that the life or safety of someone, especially a child, is in danger.
Djanogly hopes that the new measures will alleviate the stress of divorce proceedings for many couples.
The new measures will require divorcing couples to attend one session of mediation before they can proceed to court. If mediation does not work, for example one party doesn’t turn up or refuses to cooperate the case can proceed to court. The new measures will not require those cases involving domestic violence or child protection issues to go through the mandatory mediation stage.
The benefits of mediation include:-
- Speed. Mediation can often be quicker than court proceedings and can proceed at its own pace.
- It gives the parties control. The Mediator does not seek in any way to adjudicate and it avoids having a solution imposed by the Court. Couples can decide what they want to talk about.
- Less hostility. Couples will have to co-operate and work together. The process can help the parties limit any conflict between them because they have to discuss things productively in order to achieve a negotiated settlement.
- Better for children. Where there are children the parties will both continue to be parents and will each have continuing responsibility for them. Court proceedings can increase bitterness and uncertainty within families.
- Cost. It is much cheaper than going to Court. The parties will be paying only one lawyer and not two!
- Flexibility. The parties can make agreements about matters which the Court cannot decide and they can create solutions tailored for their individual needs.
- Informality: Mediations normally take place in less formal surroundings than that of a solicitor’s office and first names are used.
There is no doubt that Mediation has been very successful for many families over recent years. However, it is not suitable for everyone. Some lawyers have argued that the new measures will amount to a denial of access to justice.
My own view is that as a lawyer I always aim for an agreed solution through negotiation. Most couples prefer to avoid going to court due to the stress and expense and I am always mindful of their views. However, it simply isn’t always possible to avoid this course of action and in a lot of cases the court is the only appropriate way of resolving the issues.
Is there such a thing as an amicable divorce?
by Lisa Burton-Durham, January 11th, 2011
Divorce and separation affects many couples and in these times it is often regarded as a ’normal’ life event. However very few couples want their relationships to end in acrimony. In our experience many, in fact, would like to remain on good terms with their partners.
Most individuals setting out on the path to divorce or separation hope for a fair outcome and a secure future for themselves. Unfortunately often what is fair to one party is seen as unfair to the other. So, how do we overcome what is often seen as an inevitable war?
Our advice is to do whatever you can to prevent the emotional rollercoaster of divorce from escalating out of control by not allowing your emotions overrule your head.
Our top tips for keeping a divorce/separation amicable:-
1. Avoid seeking revenge against your partner. Tit for tat exchanges are unhelpful and will mean that the bigger issies will be more difficult to resolve.
2. Communicate with your partner. If you are not on speaking terms with your ex then sorting out your separation could be more difficult and possibly more expensive. If you can communicate the chances are that your partner will be more receptive to your requests.
3. Never use your children as pawns. You could seriously risk alienating your children.
4. Acknowledge that your partner may be emotional at a different stage to you. Remember that if you have been planning to leave your spouse for some time and they have no idea it will probably come as a huge shock to them and will take them longer to come to terms with the situation.
5. Don’t be afraid to ask for support. Friends, family, your GP or perhaps a life coach could be beneficial if you are struggling.
6. Choose the right lawyer for you. It’s easy to assume that all lawyers are up for a fight. Quite the opposite is the reality. Most family lawyers will want to resolve the issues in the same way you do – amicably and constructively without confrontation.
What are the options and what help is available for an amicable divorce or separation?
Mediation – A mediator is an independent and neutral negotiator, who is able to talk to both sides and who works for the benefit of the whole family. As there is just one mediator, he or she will have a clear idea of the feelings, wishes, hopes and fears of both parties.
Collaborative Family Law – This approach allows couples to work as a team with trained professionals with a view to resolving disputes with respect for each other and without going to court.
Divorce Coaches – Professionals experienced in working with families in crisis. They aim to provide support to couples and individuals as they work through the divorce process.
Undoubtedly if you are able to come to an amicable agreement about divorce you can keep costs and emotions under control.
For more information contact me at lbdurham@mayowynnebaxter.co.uk
Alternative, cost effective, methods to resolve family disputes
by Gemma Hope, November 29th, 2010
The government has set out plans to support mediation as a form of dispute resolution for a variety of disputes, including family disputes. With the economy as it is people are all looking to tighten their belts, and the benefits of avoiding costly, distressing court actions, need to be considered.
The speech of Jonathan Djanogly, the Parliamentary Under Secretary of State at the Ministry of Justice, setting out the government’s views can be read on the website of the Ministry of Justice.
The Family Team at Mayo Wynne Baxter are strong supporters of alternative methods of dispute resolution to help people going through family difficulties find constructive, creative, cost effective and flexible ways of resolving problems. So what methods do the Family Team at Mayo Wynne Baxter offer as alternatives to Court and traditional solicitor led negotiation?
1. Mediation - This is a process by which an impartial third party, the mediator, facilitates a discussion between the couple going through family difficulties to help them reach a suitable solution to their situation. Mediation is usually quicker and more cost effective than court proceedings and can allow a couple to reach their own solution tailored to their needs rather than having a solution imposed upon them. Mediation can be used to resolve numerous family issues including division of assets following a relationship breakdown and issues involving children. Although an agreement reached at mediation is not legally binding in certain circumstances the agreement can subsequently be converted into a Consent Order and submitted to the Court for approval, often without the need for anyone to actually have to attend Court. Linda Lamb and Charles Le May are qualified Mediators. Linda Lamb is also a member of Lawyers who Mediate and is trained and qualified to mediate with children as well as adults.
2. Collaborative Law - This is a model which has been highly successful in America, Australia and New Zealand and has been brought into our legal system through Resolution (formerly the Solicitors’ Family Law Association); within this model all the parties are required to sign an agreement stating that the matter will not be taken to Court and all shall endeavour to come to an agreement. It takes the form of four-way, round-table meetings with the parties and there legal representatives (who must be qualified Collaborative Lawyers). An agenda is drawn up prior to the meetings so that specific issues are dealt with at each meeting. The parties have their legal representative present within the meetings in order to give guidance and direction. The lawyers work together also to ensure that the best outcome is achieved all round and it is one which will stand the parties both in good stead for the future. There is no secrecy involved, it is a fully transparent and inclusive model, both parties have to put all their cards on the table so to speak. Other experts such as financial advisers, actuaries and accountants can also be enlisted as part of the “team” to help reach a suitable agreement. Once an agreement is reached it can be converted into a Consent Order and submitted to the Court for approval so that it becomes legally binding. Linda Lamb , Alan Larkin and Robert Williams are all qualified as Collaborative Lawyers and members of the Collaborative Lawyers Brightpod