Everybody knows that a divorce can be handled in court. Most people know that you could use mediation. However, there are a number of alternative ways to settle aspects of your divorce. Choosing a divorce process can be tricky. Before you commit to any process you should know the pros and cons of each. That way you can make the best decision for you and your family.
There are a few types of mediation, but generally speaking mediation uses a neutral third party to help you and your ex decide on things like child care and finances. Before mediation starts the mediator will meet both you to make sure you are comfortable and safe to meet together. Then you will meet over a series of sessions to try to come to an agreement. Once you come to an agreement the mediator will set it out in writing in a ‘Memorandum of Understanding’, which can be turned into a binding order by the court.
There are a number of advantages to mediation. Firstly, you get to decide on key issues, not a Judge. Agreements made in mediation tend to last, as both parties have made an input to them. Also, it is the most cost effective solution and you can seek legal advice from your solicitor at every stage of the process.
However, emotions can run high during mediation and agreements cannot always be made. This can lead to the breaking down of the process, after which you will need to look for an alternative way to settle disputes.
Collaborative law involves both you and your ex appointing a lawyer each and coming to an agreement through a series of four-way meetings. At the beginning of the process, all four of you sign an agreement called a ‘Participation Agreement’. You then all meet to negotiate the terms of the divorce which can then me made binding by the court.
Like mediation, this has the advantage of working together to agree on the outcome. The process is flexible and determined by you and your ex. You can meet as often or as little as you want. It is also a cheaper alternative to court and many people find their relationship improving with their ex as they are communicating directly. This can be especially beneficially where children are concerned.
However, much like mediation it does not always result in an agreement between the two parties. Should either of you decide to go to court during the process, both lawyers must stop acting.
Family arbitration is a method of resolving financial aspects of a separation. Both you and your ex must agree to an arbitrator who will act like a Judge and make decisions about your finances. The arbitrator will gather evidence in order to make a decision. However, once you have appointed a family arbitrator you can’t back out of arbitration. The process is very flexible but the arbitrator must apply the family law of England and Wales.
The advantage of arbitration is that both of you get to decide who the arbitrator is, unlike a Judge in court. You can decide exactly what they make decisions on; it doesn’t have to be everything in dispute. Arbitration tends to me quicker than court and you can choose when and where to meet them.
There are disadvantages to arbitration. It can be more expensive than court as you have to pay the arbitrator’s fees and associated costs. Also, arbitration only covers financial matters. Child care and other issues need to be agreed separately.
Court is now usually the final resort in divorce proceedings. If it is not possible to come to an agreement outside of court, the decision is made by the Judge instead. Your solicitor will gather evidence and put forward arguments for your case, as will you ex’s solicitor. The Judge will consider all the evidence and make a decision based on what has been provided.
There are some circumstances in which court is necessary:
- If either party is withholding information
- There is no hope of negotiating a fair settlement
- If there is a threat of domestic violence
- There are complex financial issues
Court proceedings are time consuming and expensive. However, your solicitor may continue to try to come to a resolution outside of court. This can save time but your solicitor should discuss this with you first.
Mediation, collaborative law, arbitration and court proceedings all have their advantages and disadvantages. Choosing a divorce process that works for you will depend on your and your ex’s circumstances.
If you’re considering divorce or currently going through the process and would like to know more about these alternative methods please contact us in London (West Drayton) on 01895 449288 or in Hertfordshire (St Albans) on 01727 840900 or by email via our contact page.