Q.  My partner and I have separated and we have lots to sort out both in terms of our financial affairs but also in relation to our two young children. I do not want to get embroiled in Court proceedings and very much want to be able to sort matters out with my ex- partner in an amicable manner and as cost effectively as possible. I have heard stories from friends about how long things can take to sort out through the Courts. I have spoken to my ex- partner and we do want to resolve matters but we do not seem capable of having any sensible discussions without things erupting into a fight. What options do I have?

Both you and your ex-partner may choose to instruct independent solicitors and try to negotiate an outcome both as to children issues and also financial matters. As members of Resolution (formerly the Solicitors Family Law Association) we follow the code of practice which emphasises the importance of conducting matters in a constructive way. If matters cannot be agreed through solicitor negotiations then you may decide to issue Court proceedings to ask the Court to decide. We at Family Partners recognise the difficult nature of such proceedings and for that reason we do the majority of our own advocacy. We believe that it is important that you deal with the same people wherever possible through your matter.

There are other options. One of these is mediation. Mediation is a process whereby you and your ex-partner meet with an independent mediator who assists you to negotiate an outcome. Mediation can be used to sort out financial matters and/or children issues.

You would first of all attend an assessment meeting where the mediator would assess whether your matter and your circumstances were suitable for mediation. You would usually see the mediator separately at the assessment meeting. If the mediator felt that mediation would be appropriate and you both decided that you were willing to engage in mediation, you would meet with the mediator for a first appointment. Usually you and your ex-partner would be in the same room with the mediator who would facilitate discussions between the two of you. You would have such further sessions as you and the mediator agreed between you were necessary

The mediator is impartial and will not give either of you any legal advice. The mediator can clarify facts for you but his/her role is not to advise either of you individually. It is to help you both to move forward through exploring the issues important to you with the aim of securing agreement. Both of you would be advised to have your own solicitor with whom you could consult throughout the process.

Discussions within mediation are “without prejudice”. This means that they cannot be relied upon outside the mediation. The benefit of this is that you are both encouraged to speak openly without having the worry of prejudicing yourself unless or until you reach an agreement.

When mediating about financial matters a process of financial disclosure takes place within the process. The mediator will prepare a financial summary which is an open document. This means that it is not put together on a “without prejudice” basis. The benefit of this is that you are encouraged to be open and honest with the disclosure that you produce.

If you reach an agreement within mediation, a summary of the agreement would be sent to your respective solicitors who would advise you on the terms and then take the necessary steps to convert the agreement into one that was legally binding.

The process of mediation is a relatively time and cost effective process and is particularly useful where you want to get on and sort things out in a constructive manner. This may be important where, for example you need continue to communicate with your ex-partner going forward as regards arrangements for your children.

The other potential option to you is a process known as collaborative law. This is a process where you and your ex- partner both instruct solicitors who are collaboratively trained. You and your solicitors sign an agreement at the outset of the process stating that you are committed to sorting out the issues between you without issuing Court proceedings apart from a divorce if that is appropriate. There are then a series of four way meetings between the two of you and your solicitors during which you negotiate an outcome. Financial disclosure takes place within the process. There is a real incentive to reach an agreement because if the process were to break down and one of you decided to issue Court proceedings then you would both need to find new solicitors.

The collaborative process is not necessarily a cheaper option than traditional solicitor negotiations. The benefits are that there is very little written correspondence between your respective solicitors and all discussions are carried out on a face to face basis, or occasionally through telephone conferences. It is possible to get the input of other professionals where necessary. For example you may jointly decide to appoint an independent financial adviser and/or a forensic accountant who would join in the meetings.  The aim is to avoid the need for Court proceedings and the focus of the process is about moving things forward and achieving solutions that are acceptable to both of you

The collaborative process is gaining in popularity. It can be useful where there are complex issues which you may not feel comfortable discussing with your partner direct and/or without having your solicitor present.

Through Family Partners we offer all of the above services and we would be happy to discuss your circumstances with you.

The head of the department, Anne Brathwaite, is the national treasurer of Resolution (formerly the Solicitors Family Law Association). Anne is also a very experienced mediator and a trained collaborative lawyer.

Posted: December 18th, 2008 under Family.
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