How to Resolve Children & Financial Issues between Separating Couples without Going to Court?
The breakup of a previous caring, loving and important relationship is always likely to be difficult. The transition from the breakdown phase into a position when each of the separating people can move forward with confidence in terms of wellbeing, finances and the children can for some couples be easy, but often it can be problematic, difficult to achieve and an emotional strain.
Some couples can separate without assistance, but most find professional assistance and guidance is often invaluable. It gives a very good grounding and provides confidence in the judgement that people make.
There are a variety of ways in which separating couples can be assisted in resolving issues and making decisions. Initial advice from family law specialists can really help.
Much depends on how well each communicates with the other, it can be the case that even couples that are able to communicate in a very civil way about routine day-to-day matters find talking about the wider more important issues of the children and the finances then communication can be difficult or unproductive.
Where separating couples want and can communicate in a constructive way
In this situation, there are several methods of professional help and resolution that can give assistance and structure to that communication.
In mediation, a Mediator joins a couple in meetings to assist them to communicate better with one another and reach their own agreed and informed decisions typically relating to some, or all, of the issues relating to separation, divorce, children, finance, or property by negotiation.
Mediators are trained to help resolve disputes over all issues faced by separating couples, or specific issues such as arrangements for any children. A mediator will meet with the separating couple together and will identify those issues that cannot be agreed and help the separating couple to try and reach agreement. All sessions are without prejudice so people can talk freely.
Mediators are neutral and will not take sides, so they cannot give advice to the separating couple. They will usually recommend that the separating couple each obtain separate legal advice alongside the mediation process and will guide the separating couple as to when this should happen. However, Resolution trained lawyer mediators will provide general and in some cases, extensive legal information to the separating couple within the mediation if this is appropriate. Some are qualified to consult with children in mediation.
Mediators listen to find out what is important to the separating couple and help them make their choices and decisions about the best way forward. They will help the separating couple reach practical solutions which work. There. There will normally be 3 to 5 sessions of about 2 hours. Any agreed proposals in mediation can be turned in to a binding agreement or court order with assistance.
Specialist forms of mediation include –
Hybrid mediation is where other professionals and experts are brought into the process to help in complex and difficult mediation cases. More commonly, hybrid involves the mediation participants and their lawyers being involved in the session, which can be a benefit in supporting the clients and enabling cases with complex facts or law to be moved forward. Other experts can include accountants, financial advisers, counsellors and child experts.
Shuttle mediation, a form of hybrid mediation, is where the two parties in dispute sit in different rooms or Zooms, while the mediator moves or ‘shuttles’ between them. The mediator does so while trying to reach an agreement. The shuttle mediation can be undertaken remotely or even on different days.
Shuttle mediation may be used in the case where domestic abuse has occurred or the couple’s relationship has broken down to such an extent they cannot communicate easily and freely when in sight of each other.
But caution is still required, that this represents a safe process. It can also be used where the mediator can make more progress by speaking to the parties individually as they feel more comfortable discussing matters that way. A thorough screening process, mediators specially trained in domestic abuse and an ongoing assessment of any potential risk are essential.
In a collaborative process, each person appoints their own collaboratively trained lawyer and the separating couple, and respective lawyers all meet together to work things out face to face or by Zoom. Each will have their lawyer by your side throughout the process and so the separating couple will have their support and legal advice as they go.
Besides the lawyer, the separating couple will have the opportunity to work with an independent financial adviser, a family consultant, a child specialist or an accountant, who will provide the separating couple with specialist help regarding financial matters and those concerning children, parenting, communication and emotional support if and when needed. All these professionals will collectively make up the collaborative team.
Both mediation and collaborative have the advantage that it is the separating couple who are making the decisions about their own finances and children. The issues and the timetable can be set by the individuals rather than a rigid and long running, expensive court process.
Counselling and therapy intervention which can run alongside any of the above
Expert help and guidance is available for individuals, couples and families. Therapy sessions and workshops help people who are separating to develop practical functioning relationships and navigate challenging life experiences. People seek help for various reasons. They may need support to address life changes such as divorce. Perhaps some help with mental health conditions, such as depression.
One Solicitor Solution for One Separating Couple
One Solicitor Solution is a way of working that allows lawyers to work with and advise couples jointly, including providing appropriate legal advice, through a divorce or separation.
Resolution and Anthony Gold have developed a new approach to serve separating couples. This reflects the change in legislation and the desire to reduce unnecessary conflict between individuals to benefit all those involved.
It will work by allowing a single legal solicitor to provide advice to a separating couple who want to manage their separation together. It is suitable for those whose joint aim is to reach an outcome that meets their needs and if they are parents, the needs of their children. A key feature is that individuals must give their informed consent to disclosing all the relevant factual and financial information required in order to reach their decisions together, to one another and to the legal professional who will be advising and guiding them towards their final outcome.
Some of the principles relating to One Solicitor Solution are closely aligned to other dispute resolution approaches, such as mediation. However, One Solicitor Solution provides an advice-based service where both clients are able to receive advice, including legal advice on a jointly beneficial basis. Generally, those who choose this option will not be in a dispute or have a ‘conflict’ as known within law and the professional they are working with must adhere to regulations in respect to conflict of interest/s. Their appointed legal professional will provide advice and may also suggest that advice and assistance is obtained from others as part of the team assisting the couple. The aim is that they will reach a decision that will be recorded in a draft order and the legal professional will assist them to obtain an approved order.
From time to time, it may well be the case that a ‘conflict’ or issues arise that the couple cannot resolve, perhaps due to strongly held views of one or both of the couple. When that is the case, it will need to be explored and if it cannot be appropriately resolved, then it will be necessary to cease acting as their legal professional and to consider next steps with the clients, which might include referring to mediation, or separate legal advice and representation for both or arbitration.
Where issues are unresolved after reasonable attempts to agree or communication is extremely difficult then the following are options:
Early neutral evaluation/private financial dispute/private dispute resolution in children cases.
A private financial dispute resolution (PFDR) or early neutral evaluation (ENE) is a simple concept principally, that a family law expert (a barrister, solicitor or retired family judge) is paid to act as an evaluator or private ‘judge’ in a financial dispute resolution or a private dispute resolution in a children case.
A financial dispute resolution is designed to enable the parties, with assistance of the judge to identify and seek to resolve the real issues in their case, with the aim of limiting the overall financial costs and lessening the emotional and practical strain on the parties.
The PFDR is a meeting held for the purposes of discussion and negotiation where the parties should use their best endeavours to reach agreement on the main issues between them. Usually written and oral submissions are made to the PFDR judge, and the judge gives their opinion as to the likely outcome if the parties were foolish enough to go to a final hearing.
The views of the ‘judge’ are not binding but are invariably influential and persuasive. The PFDR process is without prejudice to any final court hearing, enabling the parties to be more open and involved in trying to resolve cases.
The judge is not to determine issues of fact, but the judge can offer their views on the likely outcome of disputed matters where appropriate. The key benefit of the PFDR is when the ‘judge’ gives their opinion as to how the law would apply to the parties’ individual circumstances.
Sometimes, the judge can give a definitive view or certainly a range of outcomes. The parties, with the benefit of their lawyers, are then encouraged to negotiate a settlement with the benefit of the opinion of the ‘judge’. The ‘judge’s’ opinion can be sought by way of further clarification as the negotiations progress.
The PFDR takes place at a time convenient to the parties. This can include parties who are based abroad or even the appointment itself taking place abroad on a face-to-face basis.
This often can be the solicitors or the barrister’s chambers and a full day is set aside to maximise the prospects of settlement. PFDRs conducted by Zoom or other video platforms have proved successful especially when the parties are in the same room as their own lawyer.
In family arbitration, the separating couple both agree appoint an arbitrator, who will make a decision that will be final and binding between the parties, on any financial and property disputes or some child-related issues arising from family relationships.
Family arbitration enables couples going through family breakdown to resolve disputes more quickly, confidentially and in a more flexible and less formal setting than a courtroom.
The same arbitrator will deal with all stages of the case from start to finish, the separating couple will have the major say in how the proceedings are run.
This could include, for example, choosing the venue, whether to meet face to face or through writing only, or whether to use the arbitrator for the whole process or just parts of it that you are stuck on.
The separating couple usually each appoint a solicitor and a barrister to help them prepare the case to be put before the arbitrator.
The flexibility and the fact that you will get a final decision much more quickly can make arbitration more cost-effective than court.
You can find out more about the benefits of arbitration on The Institute of Family Law Arbitrators’ website.
There are some situations where arbitration might not be suitable, for example if you need to get evidence from third parties or there is a risk that your partner might try to hide assets, but arbitration is a genuine alternative to going to court for most family cases.
All of these processes are invariably quicker, more cost effective, more focused on the separating couple, and do not involve the possibility of access by the public or the press.
It is possible to have assistance in resolving and not feel that court proceedings are the only option. There is a way forward that involves help with a constructive dialogue.
David Emmerson OBE is a family solicitor, a trained hybrid and accredited mediator, a collaborative practitioner and a part-time judge with a specialist accreditation to deal with complex financial remedy cases and private law children cases.* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*