Many marriages, civil partnerships and other cohabitation arrangements end in separation, and in the case of marriage, divorce. Trying to reach a resolution of the issues between the parties can be extremely difficult. In a high number of cases, solicitors will be instructed to help achieve this resolution.
It’s not all court proceedings and “he said this and she said that”! There are a number of options available to “manage” how the parties can achieve a resolution. In this article we’ll look at these options.
Each party has rights on separation or divorce and some of these conflict. Once a client has been advised of those rights, they may take a very different stance from that taken before they sought legal advice. Solicitors will give clients advice based on the law.
Solicitors don’t make decisions for clients and only take actions based on discussion with and instructions given by the client.
When parties separate, they have various options available to resolve issues between them. Those issues are likely to involve children, money and assets. The different needs of the parties will impact on the shape of any resolution.
When parties separate, their first instinct is to protect their position. They normally seek advice about this from a solicitor. At the first point of contact with a solicitor, the options available to resolve the issues should be set out. The main options are Solicitor Negotiation, Collaborative Practice, Mediation, Arbitration or Litigation.
Until recently, this was the most common form of resolution. Each party would instruct his or her own solicitor. After receiving instructions, one solicitor writes to the other party’s solicitor setting out the client’s position and seeks information about the other party’s position. The other party’s solicitor takes instructions and then replies setting out the other party’s view. This is then explained to the client and further instructions are sought. This process and exchange of letters repeats itself until an agreement is reached between the parties. The terms of the agreement are set out in a Minute of Agreement once an agreement in principle has been reached. Both parties sign the Minute of Agreement. That agreement sets out the arrangements between the parties and is binding on both parties. If an agreement cannot be reached, the next option is usually litigation.
There are, however, three alternative methods of reaching an agreement between the parties that can lead to a quicker and, perhaps, cheaper and more equitable settlement – Collaborative Practice, Mediation or Arbitration.
Again, each party will have his or her own solicitor. In this case they will sign up to a collaboration agreement committing themselves to settle the issues between them without resorting to the courts.
Both parties and their solicitors will be present at meetings. The parties will set out and discuss the issues between them, look for solutions to the problems facing them and attempt to reach an agreement across all these issues. If further information is needed, third parties can be asked to attend and supply information or give advice to the parties in the meeting – a common instance of this would be specialist financial advice.
Outwith the meetings, each of the parties will be advised separately by their solicitors. What takes place in the collaborative process is confidential with the exception of any financial information which may be used outwith the process.
Once an agreement is reached between the parties, it is then reflected in a Minute of Agreement that then becomes binding on the parties.
If matters cannot be resolved and one of the parties decides to seek a resolution through litigation, then the solicitors involved in the collaboration cannot then represent the parties in the court proceedings.
Mediation is another alternative means of resolving issues between the parties. Again, whilst each party will have his or her own solicitor, they agree to appoint a Family Mediator to mediate arrangements between them. The Mediator doesn’t represent either of the parties but seeks to work with the parties to resolve the issues between them and to help them reach agreement on what should be done. This normally involves a series of meetings with the parties. The Mediator will provide a summary of the mediation and when it is successful, a Minute of Agreement can be prepared reflecting what’s been agreed in the Mediation. This will be binding on the parties. As in the collaborative process, confidentiality is preserved except in relation to financial information which can be used outwith the process.
This is perhaps the latest of the alternative dispute resolution options available to the parties. Arbitration can be used where there is an issue of principle between the parties that cannot be otherwise resolved using Collaborative Practice of Mediation. Examples of this might be what the relevant date of separation is, how much maintenance should be paid, what the matrimonial assets are worth or the resolution of specific matters in relation to the children. These are just some examples of the types of things that can be decided by arbitration.
The parties, assisted by their solicitor and, sometimes, the arbiter, set out the scope of the arbitration and put that into an Agreement to Arbitrate. The arbitration process and timescales are agreed. For instance, are there to be only written submissions or oral submissions and/or evidence or both?
Once the arbiter has made a decision, it is then binding on the parties as agreed in the Agreement to Arbitrate.
Collaborative Practice and Mediation have the parties at the heart of the whole process with the focus on the best outcome for all involved. Arbitration tends to focus on specific issues in dispute between the parties. These methods of dispute resolution can also provide solutions that would not otherwise be available to the courts if the parties had to resort to litigation.
There are obviously circumstances where Collaborative Practice, Mediation and Arbitration are inappropriate, for instance, where there are concerns about the welfare or security of the children or where there is an element of domestic violence, and the only options available are solicitor negotiation or litigation.
Finally, if all else fails, the parties can resort to the courts who will then hear the facts and circumstances and impose a ruling that it binding on both parties. Litigation can be lengthy and expensive and, sometimes, delivers a resolution that neither party is happy with.
Contact our experienced family lawyers
If you find yourself in the unfortunate position of separating from your spouse or partner and require our help, call us on 0141 887 5271 (Paisley) or 0141 886 5678 (Renfrew)