Formal court proceedings are rarely the best way to resolve family law issues. They often increase the tension and conflict that already exists. They can be emotionally draining and even traumatic, particularly for any children involved. There are other options, collectively referred to as alternative dispute resolution, that can assist parties to resolve family issues such as divorce and separation in a more amicable way, and away from the public glare. Taking a constructive route often leads to a more positive experience in which parties can reach an agreement suitable for them and their children.
The two main ways to resolve disputes over divorce and separation using alternative dispute resolution are mediation and collaborative law. But how do you know which one is most suitable for your situation?
Understanding the difference between mediation and collaborative law
Both mediation and collaborative law are voluntary processes designed to resolve disputes quickly, but also without the stress and cost of formal court proceedings. However, it is essential that both parties agree to take part in the process and are committed to finding progressive solutions through to a fair and agreed conclusion. Most divorce and separation disputes can be resolved using either of these approaches, but there are subtle differences which highlight one being more appropriate in some situations than another, so let’s try and understand each one a little more.
- What is mediation?
The mediation process is led by a qualified mediator, who has an independent and impartial role with the aim of managing discussions between the two separating parties. The mediator leads a series of meetings in which constructive negotiations take place and the mediator aims to guide the separating parties towards making key decisions, whilst not making or influencing those decisions themselves.
The main objective of mediation is to use balanced discussion to reach fair and reasonable agreements that suit the best interests of the whole family. The mediator’s neutral position can therefore be used to bounce ideas and suggestions around to see what works best. However, the mediator doesn’t offer legal advice and must remain neutral throughout. The mediator helps to keep discussions focused on resolving issues such as child arrangements and financial arrangements, and away from petty arguments and blame.
A typical mediation process would start with confidential assessment meetings with each individual party and the mediator, in order for the mediator to gather information and conduct safeguarding checks. After that, if the parties wish to proceed, and the mediator considers mediation to be safe and suitable, a series of joint mediation meetings can take place with the aim to find mutual solutions. Once solutions have been reached, the mediator will record what has been discussed and agreed. The parties’ respective solicitors can then incorporate the agreement into a legally binding consent order.
The mediation process will always include the mediator and the parties. The parties’ respective solicitors can also join, with a view to providing legal advice and further support to their clients during the process. Other experts, such as financial neutrals and/or pension experts can also be invited to join the sessions to provide helpful information to the parties when exploring options.
- What is collaborative law?
Collaborative law is a process whereby the two separating parties and their respective solicitors work as a team and use a series of face-to-face meetings to resolve the issues involved in separation. There is a direct objective of avoiding formal court proceedings.
The key difference between collaborative law and mediation is that each party has their own legal representation throughout, and the four work as a team to secure the right solution for the clients. As with mediation, there remains a strong focus on reaching workable solutions and keeping discussions calm and professional, so collaborative law is also a positive experience which involves constructive discussions.
The collaborative law process requires the solicitors to be trained in collaborative law, and each meeting will have a purpose and a structure. This collaborative approach also allows for other professionals to join the discussion, such as financial advisors and specialist childcare consultants. The process follows a similar theme to mediation, and the final result is that the instructed solicitors submit a consent order to the court for approval.
How to choose the right approach between mediation and collaborative law
There are various similarities between mediation and collaborative law:
- They both require each party to agree and commit to the process
- They both require each party to be willing to compromise and co-operate
- They are both quicker and more cost-effective than formal court proceedings
- They are both confidential and less stressful than court proceedings
- They both empower the separating parties to make their own decisions and find solutions in the family’s best interests
One of our family law specialists at Consilia Legal is Sam Sinclair, who is based in our York office and is a trained mediator and collaborative lawyer. Sam understands the benefits of both approaches and has commented on when each approach may be more appropriate:
“The key difference in the two approaches is that collaborative law allows each party to have their own legal representation present whilst working as a team, and the meetings have a more defined structure. Some separating couples may prefer this approach, perhaps where they are not communicating well. Collaborative law allows the solicitors to drive discussion and keep it focused.
With the right professionals involved, both mediation and collaborative law are excellent processes to deal with complex marital assets, such as property, trusts, investments, business interests and/or some overseas assets.
Sam also explains why some couples may prefer mediation, adding: “Mediation may be more appropriate where couples would like to limit the professionals involved and do not wish to have solicitors involved in the process.”
Professional and friendly legal support with separation
If you are involved in a separation and wish to consider alternative dispute resolution, contact our team at Consilia Legal and we can talk you through the options and help you find the right solution for your family.