We believe it is incumbent on us to explore all process options with our clients so that they embark on a process that “feels right” to them. Depending on the level of conflict and the existing relationship between couples there are a number of routes available.
These different options have the rather fancy title of “the dispute resolution continuum.” The end game is to reach a resolution which can then be enshrined in a separation agreement or binding contract between the couple. This can be broken down into the following:
In all of the above options the aim is to reach an agreement. If there is no prospect of reaching an agreement between you then the last options are:
At BTO we pride ourselves in being proactive, well prepared and organised so that you have the best chance possible of early settlement.
Kitchen table negotiation
This is where you and your spouse or partner have a good relationship although you are separating. You feel able to sit down together at the kitchen table to sort out your separation. You recognise that you both probably need to engage a good family lawyer to help with explaining your respective legal entitlements. You will also need your lawyers to draft a watertight agreement. For the most part, however, you feel able to conduct meetings yourself and feel comfortable “dipping in” for legal advice. Here at BTO we will fully support you with as little or as much intervention you think you need.
Mediation is designed to assist couples who need a bit more intervention but can still get on with one another. Mediation involves both you and your partner attending mediation sessions with a trained neutral mediator who will try to help you find a solution to your dispute. Mediation tends to suit low conflict couples where there is no history of aggressive behaviour and there are no power imbalances. At the end of mediation, the mediator will prepare a mediation summary. The couple will then need to instruct their respective lawyers to draw up a separation agreement. Please note that the mediator cannot draft your separation agreement for you.
We like collaborative practice at BTO as this is what we do most of. Collaborative Practice also suits most couples. We find that most people are able to sit in the same room as their spouse/ partner but they really like the idea of having their legal representative with them! Often people don’t want to go to court and many are relieved to find out that Collaborative Practice makes both parties commit to not doing that. Most people also like the idea of finding common ground, working in the interests of their family and ensuring that their children are not lost sight of in the process.
Another facet of Collaborative Practice is that we can add on other experts who can assist the couple in reaching the best settlement for them. Most clients who have gone through this process are very happy with the outcome. You remain in control throughout. You are listened to and the options are tested. Your collaborative lawyer is with you throughout and drafts the separation agreement for you. At BTO all our senior family lawyers are trained in Collaborative practice. Visit our Collaborative Divorce page for more information.
Negotiation is used when things have gone so far that you can’t sit in the same room together but you are not yet at the point of having a court decide your future. We would essentially front the negotiation for you and correspondence would be sent between the respective lawyers. We would then draft the separation agreement for you.
Arbitration is an adversarial process similar to court in that an Arbitrator (private judge) is appointed by agreement to decide any issues that you have been unable to. It is designed for situations in which you and your spouse/partner cannot come to an agreement but still want to attempt to resolve matters outwith the court. Its advantages are that you get to choose your own private judge and they will be an accredited specialist in family law. It is fast, efficient and private. The decision that they make is binding on you and your spouse/partner. Arbitration is normally also a more cost effective option than court. Lesley Gordon is a trained arbitrator. For more information on Arbitration read our blog post: Arbitration – A better bet for resolving your family dispute?
Litigation / Court is by far the most expensive option and is also the most traumatic. Sometimes you will have no option but to end up in court. We will do our best to protect you and will always give you the option of not attending court if you don’t have to. The good news is that most cases don’t go to proof or trial and most cases settle.
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