A way forward for couples separating
Alternative Dispute Resolution is the name given to various ways of resolving disputes other than taking your case to Court. This could be mediation, arbitration or collaborative practice. Particularly during the Covid-19 pandemic, which has put a further strain on the Family Courts, causing additional delays, and last minute adjournments of cases, it is worth separating couples giving these ADR options serious consideration. Whilst the lockdown restrictions prevail, all 3 are likely to be conducted remotely but this does not diminish their effectiveness and the majority of Court hearings are also taking place remotely.
This is a process in which you and your partner/spouse will agree to your case being referred to a skilled trained arbitrator. The arbitration process replicates the Court process, in timetabling the matter, giving directions for disclosure of information and the exchange of Statements, and the hearing itself, in which a decision is made by the arbitrator in place of a Judge. The arbitrator’s decision is legally binding on you both. You will generally have a solicitor represent you at the arbitration hearing and you and your partner/spouse will pay for the arbitrator to hear your case, who will be a retired Judge, barrister, or solicitor who are specially trained in arbitration.
This requires you and your partner/spouse to each consult with a collaboratively trained solicitor. You will each sign an agreement, that you will not take your case to Court and your collaborative solicitors will have a series of round table meetings, in an attempt to resolve the dispute. Accountants and valuers can be jointly instructed where necessary to value any assets, for the purposes of the dispute. If the collaboration does not result in an agreement, you will need to instruct new solicitors to take the matter to Court.
You and your partner/spouse will meet with a mediator to discuss your case, in an attempt to work out a solution. The mediator is completely neutral and cannot give you legal advice. His/her role is to facilitate an agreement, by explaining the legal framework and how a Court may deal with your dispute. If an agreement is reached a detailed record of the agreed terms are drawn up by the mediator and this is called a Memorandum of Understanding. The Memorandum of Understanding can then be drawn up by your solicitor into a legally binding Separation Agreement.
In an attempt to encourage people to participate in mediation, the Ministry of Justice is now funding mediation for separating couples, up to the sum of £500. Eligibility for this is not means tested, but it is restricted to cases where the dispute includes a need to agree arrangements for a child or children. The mediation can however include other issues in addition to child-related issues, such as the distribution of finances and property upon a separation.
This article has been brought to you by Kathryn Coyle and Ellie White Andrews from our Maidenhead office. If you wish to take advantage of the MOJ scheme or have any questions relating to ADR, or family/divorce issues generally, you can contact Kathryn, Ellie or any of our family teams using the form on this page.
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