The breakdown of a relationship is an upsetting and stressful time for all parties involved. Although couples will often try many methods to save the relationship, including marriage/relationship counselling, taking a holiday together or trying to re-connect with the original spark that first fused the relationship, divorce or separation is sometimes the only option. If the end of the road for your relationship does arrive, it is important to try to minimise the resultant distress, not only for the adults but also for any children involved.
Divorce and separation can be a complex process. It needs to be taken one step at a time, but with the right approach and professional advice and support the traumatic effects can be limited.
What are the negotiation options?
Every couple is different and the route down which you proceed to complete your divorce needs to be considered carefully. So what options and processes are there to choose from to help resolve issues that arise out of a relationship breakdown, and which is best for you?
If a couple are on good terms then it may be possible to negotiate an agreement directly between themselves. A lawyer can then be instructed to advise on how best to put that agreement in to effect.
If assistance is required in dealing with negotiations then this can be provided in a number of ways.
Mediation is a process whereby a couple both see a mediator. A mediator is a neutral person who will guide and encourage discussion. A mediator cannot give specific legal advice and each party may instruct their own lawyer for advice to work in parallel with the negotiations taking place through mediation.
Collaborative law is an alternative process in which both parties instruct their own collaborative lawyer. This is a relatively new approach and one designed to promote a long term amicable approach to resolving issues. Negotiations are conducted in “four-way meetings’ where the parties and their lawyers work together to achieve an agreement. An agreement is signed at the beginning of this process by the parties and their lawyers stating that applications to court will not be made (except to give effect to any settlement reached) and that the lawyers must cease to act if the collaborative process breaks down. This means that all parties involved are entirely committed to avoiding the conflict of court proceedings.
Both mediation and collaborative law involve dealing with matters face to face and therefore a reasonable level of communication will be needed.
The “traditional’ approach to negotiation is for the parties to instruct their own lawyers and proposals are put forward largely by way of letters and negotiations between the parties’ lawyers.
If an agreement cannot be negotiated then initiating court proceedings may be necessary. In accordance with a new protocol introduced on the 6th April 2011, before applying to court for family proceedings, save for a few exceptions, the applicant must attend a Mediation Information and Assessment Meeting to receive information on the mediation process as an alternative to going to court.
Once issued, the court takes a proactive role in timetabling the case and encourages settlement. Even where court proceedings are commenced, many conclude without a fully contested hearing.
A specialist family lawyer who is a member of Resolution is recommended. Resolution members follow a Code of Practice to try and reduce the stress and conflict that can often arise at these emotional times.
If you need any advice regarding the different negotiation options available during divorce or would like to speak to a arrange an appointment with a family law solicitor to discuss your situation, please don’t hesitate to get in touch.