Negotiation Options Upon Separation

The thought of negotiating with your former partner or spouse following separation can be very daunting, particularly if you feel that you are not going to be able to reach agreement. It is normal for there to be issues in dispute in respect of the division of finances and of course in respect of the time each of you will spend with the children.

Often, separating couples decide that arrangements should try to be made directly between them without any third party intervention. This can sometimes be very effective, however it is important to be sure that you have some basic knowledge about where you stand legally. It is helpful to obtain some advice from a solicitor before entering in to any discussions to assist you in reaching a decision and ensuring that any decision is fair. Advice should also be obtained in respect of formalising any agreement reached so that it is legally binding and you are protected in the future.

Reaching agreement does not have to follow a conversation between the two of you alone, almost always problems are solved through communication, but sometimes a helping hand is required. There are several options available to assist you to resolve a dispute, without the need for intervention from the Court. Although going to Court is sometimes a necessity, generally this is best avoided where possible. Issuing proceedings at Court can be very costly, there is often a great deal of stress involved and it is likely to prolong matters considerably.

Mediation, collaborative law, arbitration and solicitor negotiation are alternatives to going to Court when negotiating alone with your former partner is just not possible or proves unsuccessful.

What is mediation?

Independent third party mediators are trained to assist you to talk to your former partner or spouse and try to agree on the best arrangements for all concerned. Mediators can assist you to discuss children, finances or even practical matters. A mediator will ensure that consideration is given to all relevant information and ensures that you to make an informed decision in a calm environment. Solicitors do not attend mediation.

How does mediation work?

You will likely have 3-5 two hour sessions. You will generally pay for each session unless you are of a sufficiently low income to qualify for legal aid. It is likely, if you are able to reach agreement, that the fees you pay for mediation will be cheaper than the fees you would pay for a solicitor to deal with these matters on your behalf.

The MIAM

Should Court Proceedings become necessary, it is compulsory to demonstrate to the Court that you have attempted mediation and attended a Mediation Information Assessment Meeting, save for in very limited circumstances.

Is mediation legally binding?

Agreement reached at mediation is not legally binding. Once agreement has been reached you should visit a solicitor who can help you to draw up the agreement in to a document which can be sent to the Court to request that it be converted in to a legally binding order and/or give you advice on whether the agreement is fair. Your solicitor will act in your best interests where the mediator is tasked with being entirely independent.  Legally binding Orders, not only to promote certainty, but to dismiss potential financial claims in the future.

What if mediation breaks down?

If agreement proves impossible, then it will be necessary to continue negotiations by way of one or some of the options referred to within this article, or to attend Court. The mediation process will hopefully have helped to narrow the issues in dispute.

What is arbitration?

Arbitration is where a qualified professional adjudicates upon your dispute. An arbitrator makes a decision known as an award. Arbitration is entirely confidential and is often quicker than Court Proceedings. Arbitration can be used regarding financial matters or property ownership only and not in relation to child contact disputes.

How does arbitration work?

You can locate an arbitrator at ifla.org.uk or instruct a solicitor to do so on your behalf. Yourself and your former partner will attend an initial meeting with the arbitrator to set a date agree a fee and discuss how the matter will be conducted. You will then sign papers accepting the conditions. A directions appointment will then be listed, where appropriate directions will be set that are required to determine your matter. It will be decided whether there will be a face to face hearing or whether the matter will be determined on paper. A date will be set for this. The decision will then be sent to your solicitors who can draw up the decision in to a document to be sent to Court to become legally binding document. It is preferable to have solicitor representation during the arbitration process, which many would say, is a cheaper alternative to attending a Court hearing.

You will generally be asked to pay the costs of arbitration in full before any decision is made.

Is arbitration legally binding?

The arbitrators award itself is not legally binding, however, you agree from the outset that the decision will be drawn up as a legally binding document. There is no flexibility in this regard.

What is collaborative law?

Under collaborative law, each party instructs their own collaboratively trained lawyer. The 4 of you will then meet together to work things out. This will mean you have your lawyer by your side throughout. An agreement is signed by each of you committing to the process and confirming that if this process breaks down, it will be necessary to each instruct a new solicitor to represent you going forward. There is no timetable as such and can be built around the needs of the family. Ordinarily 2-5 meetings are needed. Solicitors are generally paid per hour.

Is collaborative law binding?

Any agreement reached will need to be drawn up by a solicitor and sent to Court before it is considered legally binding.

What if the collaborative law process breaks down?

If no agreement is reached, then it will be necessary to continue negotiations or attend Court. The process will at least have helped to narrow the issues.

What is Lawyer negotiation?

When you appoint a family lawyer, they can negotiate on your behalf outside the forum of the court, with your former partner. Often lawyers negotiation is used alongside other processes such as mediation. Lawyers will charge based upon the number of hours they spend working on your matter and will discuss this with you from the outset.

Is lawyer negotiation legally binding?

Any agreement reached should be drawn up by a solicitor and sealed by the Court before it is legally binding.

Which is best for you?

No option above is better than any other. Every case is different, and the best way to resolve your dispute is down to personal preference. The options may not be entirely isolated, and in some cases, it is preferable to use two or more of the options, for example mediation works very well alongside negotiation through solicitors or you may want to discuss matters with your former partner directly between collaborative law meetings. Ultimately, the decision you are working towards, whether it be in respect of children or financial matters is one of great importance. Agreement should not be entered in to lightly and it is extremely important that you fully understand your options and obtain appropriate advice as and when required.

Townsend Family Law are able to provide services tailored to your budget. Should you require assistance please telephone us on 01992 892214.