COVID-19 and Beyond – the rise of Alternative Dispute Resolution (Part 2)
Whilst the courts are doing their best to cope in the current pandemic, there are a number of alternatives to litigation which are often worth considering. Mediation is a form of ADR which can be used to resolve all sorts of potential disputes.
Family mediation allows separating couples to discuss the important issues arising from the breakdown of their relationship in a safe and supportive environment. An impartial mediator assists the couple in coming to arrangements for their children and their finances which keeps them in control of the outcome and able to reach an agreement which suits their family. Mediation is a voluntary process apart from an initial intake session which is usually required before an individual can apply to the court. Couples have therefore chosen to participate which is a positive start to the discussions.
A mediator cannot however, give the couple any legal advice. They can provide a wealth of information about the legal processes, the matters the court will expect them to consider and what they will be concerned about. Family mediation supports couples seeking their own legal advice alongside the process whenever they need it.
Some couples are uncertain as to whether mediation will provide them with enough legal support to arrive at a fair agreement. An excellent alternative therefore is Collaborative Law. This involves the couple each retaining a specially trained family lawyer. At the outset of the discussions, all four individuals sign an agreement that they will not go to court to resolve the issues between the couple. If they do need the court’s help, then new lawyers must be instructed. Discussions take place face-to-face and the two lawyers collaborate with each other to assist the couple, whilst still only advising their individual client. This provides support to the client in providing them with the legal advice they need during the discussions but encourages everyone involved to come up with creative and workable solutions.
For some people, the idea of signing an agreement which will preclude them from retaining their solicitor, should court litigation be required, is off-putting. An alternative therefore is a roundtable meeting which can take a similar format to a collaborative meeting but without the restriction on representation in the court process should an agreement not be reached. The focus of any roundtable meeting is still on settlement however with everyone working hard to achieve that. It is possible to break out into separate rooms if discussions become a little difficult and this flexibility means that the couple has the best chance of arriving at an agreement without requiring the court’s intervention.
At BPE, we regularly assist clients with alternatives to the court process. We have a trained family mediator and collaborative lawyers in the team and all of our solicitors are well versed in undertaking roundtable meetings to achieve fair outcomes for our clients. With the unpredictability of the court process, alternatives should always be considered, as these may represent a swifter, more cost-effective and constructive way of achieving a settlement.
If you wish to discuss this further please contact a member of the Family Team and we will happily advise you further.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice
