Is a 'good divorce' possible?

29th March 2018

We explore the different types of divorce process options available.

1. ‘Kitchen table’ negotiations
This is where you and your spouse sit down and talk through your issues together until agreements are reached. 

This can prove quicker than other methods and obviously is free but you will not have the benefit of legal support or guidance.   You will have no ‘clean break’ and if not embodied in a court order, it’s not binding or necessarily final.
  
2. Mediation 
This is where you and your spouse meet together with a qualified family mediator for a series of discussions to aid settlement.


Typically faster than other ADR (alternative dispute resolution) options, the mediator can share relevant information and guidance (but not legal advice) and help to keep your discussions constructive.
Although mediation costs are shared with your spouse, you need to each separately instruct a lawyer for advice alongside mediation as agreements reached in mediation need a lawyer’s intervention to make them legally binding.

3. Collaboration

Both you and your spouse need separate representation from a collaboratively trained divorce solicitor.  Your lawyer supports and advises you in the meetings and throughout the process and you will all work together as a genuine team in ‘4-way’ meetings.  Collaborative experts can be brought in if needed, such as a financial consultant and/or a family consultant/coach to help work through the more complex issues.  An agreement is signed at the outset that we will not litigate and we will keep talking until all issues have been resolved in a respectful, open and honest way, which agreements are then converted into legally binding consent orders.

The beauty of this method is that you control the pace of the process, what goes on the agenda and you retain control over the outcomes.


Collaborative divorce has a high success rate (around 85%) and outcomes can be more creative than litigated orders, with two legal minds helping to identify options that might work for you and your spouse.


Unfortunately if agreements cannot be reached and the process breaks down, this means you and your spouse both need to start afresh with new lawyers, as your collaborative representative is not permitted to litigate on your behalf.

4.Roundtable negotiations

More positional than the collaborative approach, you and your lawyer meet with your spouse and his/her lawyer to talk through an agreed agenda and to negotiate settlement terms.  These meetings can be highly effective in either reaching a full agreement or at least narrowing the issues in dispute.  There is no restriction on litigating what cannot be agreed in roundtable negotiations.


As with the Collaborative approach, you and your spouse retain control over the eventual outcomes and you agree the agenda and pace of the process.
You will be legally supported, advised throughout the negotiations and your lawyers can convert agreements reached into binding court orders


5. Litigation


This is where either you or your spouse (or possibly both of you) issue a court application (for example, for financial remedies ancillary to a divorce or for a child arrangements order).  The Court fixes a timetable to progress the application and, whilst the court encourages settlement to be reached if possible along the way, the court will ultimately determine the case and impose its decision if agreement is not reached before trial.
 
If your spouse is being unreasonable or refusing to come to the table, this may be your only option and emergency orders can be made quickly to offer protection where necessary.


Due to our court system being under strain with a backlog of cases, there may be delays and it can sometimes be a while for cases to come to trial. 


The court should ensure a fair outcome (it’s just that people’s perception of ‘fair’ is often very different).

6. Family Arbitration

A relative newcomer to the scene, it’s a bit like litigating in that decision-making is handed over to an arbitrator compared with a judge.  Both spouses need to sign up to the arbitration process and agree to be bound by its decision, which is then converted into a court order.

If you decide to go down this route it means short circuiting the court timetable, resulting in a speedier process. 

Unlike Court proceedings, you can choose what documents the arbitrator needs to see and how many hearings are required – you decide the timetable and have continuity of the same decision-maker throughout.  The downside being that you will have to pay the arbitrator’s fee and may not agree with the final outcome.


If you are heading for divorce, it is never a happy place to be in, but you do have choices. 


The type of process you opt for and also the lawyer you choose to represent you will both impact on your divorce journey and likely outcome.  If you have children, you and your spouse will need to pick up the pieces beyond your divorce and continue working together to some degree if you are to effectively co-parent your children from your separate homes.  What sort of message do you want to pass on to your children about how mummy and daddy handled their divorce?  Hopefully, with dignity and respect, always remaining focused on what is best for your children.  Don’t forget, there will be occasions in the future when your kids will want mum and dad in the same room to celebrate special events, such as their graduation, wedding, grandchildren’s christenings, etc.
If you would like further information on the different types of process covered in this article, or about your situation generally, please get in touch with us here at Acclaimed Family Law.
We offer a free half hour initial consultation with one of our expert divorce solicitors to guide you on your way towards a better future.


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