Part 1: 'Children Act' Series - Negotiations and ADR
Meeting with solicitors, negotiations and NCDR
A breakdown of the marriage is of course a very stressful situation, and the parties are often reluctant to involve solicitors as they do not wish to inflame the situation even further.
It is a common belief that if someone instruct solicitors it is because he/she wishes to take advantage on the situation. And let’s be honest, Hollywood’s usual portrait of solicitors has not helped to uplift our reputation as amicable and constructive human beings.
However, people do not usually seek solicitors help to take advantage on their spouses during a divorce but to understand their rights and obligations and ensure that the divorce is as smoot as possible. Here at Lawson West Solicitors, we pride ourselves to represent your interest in a way which also keeps matters amicable whenever it is possible.
We also encourage our clients to consider Non-Court Dispute Resolutions. Court proceedings are extremely stressful and costly. Moreover, if the parties cannot agree, the Judge will impose an order which does not necessary reflect the parties wishes and feelings. Asking the Court to make a decision inevitably involves giving up significant level of control over your own financial separation. So, it is always advisable to reach an agreement outside of the Court even if it involves compromises. At least you are compromising on your own terms.
Non-Court Dispute Resolution (NCDR) can be a perfect tool for this. This can involve negations through solicitors. In this case, parties exchange correspondences through their legal representatives and make offers (and counter offers) until an agreement is reached.
But probably the most popular NCDR is mediation. Mediation is a process by which separating married couples meet with a specially trained mediator to sort out their post-divorce settlements. The mediator is impartial legally trained professional who will explain the relevant laws to the parties and try to guide them toward an agreement which is acceptable for both parties.
These settlements can include financial, property and child arrangements. Rather than each spouse appointing their own solicitor to argue their case, the divorcing couple work with an impartial mediator to find workable solutions without having to go to court.
Traditional mediation involves the parties siting down and discussing matters face to face which means it is only appropriate if the parties are fairly amicable and capable discussing matters in a calm and constructive manner.
If the parties do not wish to have a face-to-face conversation, then shuttle mediation can be an alternative. This process is very similar to the traditional mediation, but the participants are separated into different rooms, while the mediator goes back and forth in an attempt to mediate between the two. This can avoid the tension of a face-to-face meeting.
However, it needs to be highlighted that an agreement which was reached during mediation is not itself legally binding until it is approved by a Judge. Therefore, there is always a risk that the parties change their mind after the mediation and refuse to codify the agreement.
If the parties seek a legally binding NCDR resolution, then they may want to consider arbitration. The parties basically appoint their own Judge to make a decision.
This process is quicker, as it avoids the significant delays which are often present during the court process. It is also a confidential process. So, if in your matter time is the essence, you may want to consider arbitration. Both participants must understand when they choose this process, that the decision of the arbitrator is legally binding. It is therefore the only NCDR process where the participants do not agree to a negotiated outcome.
If you believe you have a situation where you require legal advice, please contact us on telephone 0116 212 1000 or 0 116 212 1066, alternatively fill in the free Contact Us form and we will get in touch as soon as possible.
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