Even when it might be the right decision for those who are badly matched or ready to part ways, separation or divorce can be immensely painful and challenging. The difficult, and sometimes combustible, feelings around separation can impact on our decision-making around these issues.
It sounds obvious but it is useful as a reminder to set it out in black and white. At a time when you really need to engage with logic to consider all the aspects of separation, the feelings you might have towards an ex-partner or the circumstances around the separation can actually get in the way of taking a rational pragmatic approach to how you go about it.
Your professional support network (lawyers, counsellors, therapists) should work with you to help you make decisions from a constructive standpoint insofar as possible, rather than from a place of anger, resentment or destruction. Unfortunately, the traditional adversarial court process often fails to encourage this constructive approach.
Of course, there are times when people need the help of a court-based structure. When there are fundamental disagreements about, for instance, financial disclosure, or values of a significant asset, it is necessary to ask the court to determine these issues, and in those cases, it is best for lawyers simply to get on with that process, as swiftly and efficiently as possible.
However other cases and situations demand other routes. Fortunately, there does appear to be a growing awareness of the potential harm caused by the adversarial system, in terms of future relationships, the stress and anxiety caused by the hostility, and the legal costs incurred. There is a growing bank of alternatives to the traditional court process, to assist people to discuss, negotiate, and reach a consensus on difficult issues, to enable them to move on with their lives. These alternatives have the advantage also of giving the individuals involved a sense of agency over their own decision-making process.
A few examples of the alternatives we use:
Many couples on separating want to be advised together by one single professional, and if you have already reached an agreement, it might feel that using two lawyers is unduly clunky, expensive and leads to unnecessary complications. The law is developing quickly in this area and we’re very excited to be one of the few teams in the country who offer this choice for separating couples, in the right circumstances. We’ll walk you through the ways in which this might happen.
In place of a formal court system, solicitors are increasingly agreeing to use a ‘private route’, which involves the parties’ solicitors agreeing to appoint a specialist Judge on a private (paid) basis to decide on matters.
The parties then have control over the detail of this process, and preparation for it. Together we can agree on the date and the place for the hearing, and the identity of the Judge, which can be enormously helpful.
The private Dispute Resolution hearing lasts for about two hours (so there is no cross-examination). The Judge provides an indication as to what they consider to be a good outcome and the rest of the day is dedicated to discussions between the parties, towards reaching a settlement.
The entire day is without prejudice, or off the record – so the proposals and discussions won’t be seen by a Judge if the case proceeds to court. This provides some comfort for the parties who want to engage fully and freely in negotiations.
We use methods which are shown to help the negotiation process, rather than to polarise the parties. In the right case, and with the right approach, it can be extremely powerful for everyone (lawyers included) to sit around a table together to discuss outcomes. It ensures that no one loses sight of what this is actually about.
Round table meetings with lawyers present as mentioned above might feel daunting. For some, discussions might be helped by the aid of a Mediator.
Mediators help facilitate discussions between the parties. This can be an incredibly useful tool when the parties feel able to talk constructively but need a helping hand. Mediators do not advise on the law, and so don’t ‘take sides’. Instead, they help to keep the discussions on track and outcome focused, wringing out the kind of creative solutions from the discussions which might not have even been thought of during a traditional court process.
Couples in mediation most often use lawyers to sense-check their discussions, between sessions and as the mediation progresses.
On occasion, in more complicated cases, the parties prefer to have their lawyers actually attend the mediation sessions – and in that case, we have arranged for separate rooms (caucuses) for each team and the mediator moves between the rooms.
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