Kath Hill

How to avoid court proceedings during divorce

17
Dec

Going to Court for any reason can be incredibly stressful.  When you add to that the emotional upheaval of navigating a marital breakdown, it’s no surprise that increasing numbers of separating couples are expressing a preference to “keep things civil.” 

 

At Swinburne Maddison, our Family team are committed to helping couples reach agreement in a constructive and non-adversarial way wherever possible.  We understand that a combative approach during the divorce process benefits nobody, particularly when children are involved and the importance of maintaining a good working relationship between the couple is paramount.  Thanks to the specialist skills and qualifications within the team, our lawyers are able to work with their clients to explore all of the alternative dispute resolution (ADR) options that could help keep their divorce out of the courtroom. 

 

The following methods of ADR all provide a quicker and more cost-effective result for separating couples, whilst also seeking to reduce hostility and encourage constructive communication to achieve the right outcome for everyone.

 

Mediation

Mediation is a voluntary process which aims to keep the decision-making in the hands of the couple.  The mediator is impartial and will assist the couple to discuss difficult issues in a relaxed, informal way, removing much of the heat from the situation. 

Any offers made during mediation are “without prejudice” meaning they cannot be relied upon by a judge if the talks breakdown and it becomes necessary to go to court after all.

 

Collaboration

Collaborative law is slightly more formal than mediation but shares the same aim; to help the parties reach an amicable solution to their disagreements. 

With collaborative law, each party will appoint a specialist collaborative lawyer to guide them through the process and the collaborative discussions will take place in a series of 4-way meetings, attended by the couple and their respective lawyers.  With all four participants present, there is less scope for misunderstandings and considerable progress can be made.

If the collaboration is successful, the lawyers will prepare a formal agreement which can be submitted for court approval, usually without the need for the couple to attend court.

 

Arbitration

Family arbitration is effectively private judging in that – unlike with mediation or collaboration – the decision will be made for the couple and that decision will be binding.  This could be an attractive option for couples who do not feel able to reach an agreement through either of the other methods, but who wish to spare themselves the ordeal of going to court.

Family arbitration enables couples to resolve disputes much more quickly, and therefore more cost-effectively.  It also offers full confidentiality and a less formal setting than a courtroom as well as providing the couple a degree of flexibility over how proceedings are run.  For example, choosing the venue, agreeing whether to meet face-to-face or through writing only or deciding which parts of the case to refer to the arbitrator (there may be just one issue in the divorce which they are struggling to agree on, or they may wish to refer the whole case for arbitration).

 

 

For further advice or information regarding any of the issues raised in this article, please contact Kath Hill by email at kh@swinburnemaddison.co.uk or by telephone on 0191 384 2441.

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