Believe it or not, it is possible for a couple to go through the divorce process without having a “fall out” and ending on bad terms.
If you have separated from your partner you might be worried about having to go to court. You may have concerns about details of your relationship being aired in open court. There may also be thoughts of the children being caught up in a battle between you and your spouse. Thankfully none of this needs to happen. Court is generally considered as a last resort.
What is the traditional way of resolving matters out of court?
The traditional approach to negotiating a financial settlement on separation involves each spouse appointing a lawyer to represent their interests. Communication between the two lawyers is normally by way of letter or e-mail, and joint meetings are fairly rare. If the parties can reach an agreement, then this is set out in a formal written Separation Agreement, which is signed by both of them. If agreement can’t be reached then a court action may be necessary.
What are the other options?
There are several other ways of trying to resolve matters, namely Mediation, Arbitration and Collaboration. These are sometimes referred to as Alternative Dispute Resolution (ADR). Today we will focus on Collaboration.
How does the Collaboration Process work?
If you wish to proceed using the Collaboration process then both you and your spouse will need to instruct a solicitor who has undertaken the relevant training.
Prior to commencing the process each of you and your lawyers will sign a ‘Participation Agreement’, whereby you agree not to go to court. You will also both agree to act with honesty, integrity and respect, which is very important to try and ensure the process is successful.
The idea is to try and work as a team to combine the legal, emotional and financial aspects of separation and or divorce. This is done by way of a series of 4-way meetings to try and resolve areas of dispute. There is restricted correspondence between the lawyers, other than agreed exchange of information, and discussion of an Agenda for each meeting. Each party can meet with their own lawyer between the joint meetings.
There may be further meetings along the way but once all the financial information has been exchanged, and both parties’ interests have been noted, a further meeting is arranged to discuss possible options to resolve matters. The aim is to identify a plan which incorporates as much as possible of both parties’ interests. It may be that the parties require to compromise.
The lawyers involved will still advise their client in terms of the applicable law and the likely outcome if the matter were to be litigated at court (as they would in traditional negotiation) but this process is focused on the interests of the parties and any children, rather than each party and their own lawyer being focused on outcomes or “best case scenario”. The process is likely to improve communication between the parties, which can of course be beneficial in the long term, particularly if there are children involved.
In summary, the Collaboration process offers a flexible, non-confrontational approach to resolving disputes which can be much more dignified for both parties, their children and their wider family, than traditional negotiation.
