Where matters cannot be easily resolved, litigation in a court is not the only way forward.
There is a confusing list of different names for different steps in the process, which are explained below:
- Mediation consists of a series of off the record but structured discussions with a trained mediator. Often the mediator is a separate lawyer. Lawyers are not present in the mediation sessions, but they generally give steering advice to their clients while the mediation continues. Mediation can be quite lengthy and for that reason can be moderately expensive.
- Negotiation is just that. Lawyers always negotiate in divorce disputes and the great majority of matters are settled before any court proceedings at all or at least before court hearings.
- Collaborative law is a process whereby the lawyers undertake to negotiate a matter to a settlement. They sign an undertaking that if they do not reach a settlement, they will no longer act for the client. The theory is that then the lawyers will have an interest in arriving at a result rather than taking a litigious approach, but there is no evidence that these undertakings have that effect.
- “Collaborative law-lite” is where the solicitors do not sign such an agreement, and as such it is, in effect, a meaningless statement of intent only, and no different to ordinary negotiation.
- Alternative dispute resolution is a label that covers all of the above, and also arbitration proceedings.
- Arbitration is when the parties engage an arbitrator to decide their matter, rather than a judge in court. Although the cost of the arbitrator can be significant, arbitration often saves time and money by condensing the process.
We consider that it is important for a client first to have a good understanding of their position before they enter into one of these processes.
Mediation - Scenario Analysis Example #1
a) Mr S lived abroad. His ex-wife lived in England with their son now 10. He wanted his son to come to visit his country saying he was now old enough to travel. His ex-wife did not agree. We arranged for a trained family counsellor to mediate. She held several sessions over 6 months until they agreed on a trial visit abroad. Both were very reassured by the other’s demonstration of good faith and the positive atmosphere ensured future successful visits.
b) Mrs A came to us after attending 3 mediation sessions. She said “My husband is a good businessman and negotiator. Our mediator was a social worker and even with his mediation training he was out of his depth. I’ve decided I need someone who can represent my interests.” We advised her not to abandon mediation but for us to cross-check how it was going and to ensure she had ongoing advice. This enabled some issues to be settled. We and Mr A’s lawyers sorted out the remaining matters fairly easily.
What our clients are saying:
Stephen Howells (Stone Chambers London & John Toohey Chambers Perth) (June 2014)
“I am always happy to recommend you because everyone I know who has consulted you has been happy. I know that you are conscientious and that you are direct and efficient.”