24th Jun 2014

Divorce and Choice? What choice?

– major report reveals flaws in divorce system for clients

The Mapping Paths to Family Justice report has been published after three years research and study.  It reveals that people who are approaching divorce and separation may not be as aware of the choices available to them as they should be.

What are those choices?

Many assume that going to see a solicitor means going to court, but the court option is only one of many processes that you can use to resolve matters between you and your partner.

The full range of options is set out below.  

When considering this list bear in mind that the higher the option is on the list then the greater control you retain over the process.  The further down the list you go, the greater the control exerted by your appointed legal representatives.  Some commentators also suggest that the costs as your go deeper into this list;

1.     Kitchen table negotiations – the name given to self-directed negotiations carried out by you and your partner at home with little or no legal advice;

2.     Mediation – where you and your partner meet with a family law mediator (or two if they are co-mediating) who will enable you both to set out your interests and needs and help you to build an agreement between you; 

3.     Collaborative practice – sometimes called collaborative law.  In this process you and your partner and your respective collaborative lawyers meet together and contract with one another to negotiate in order to reach an agreement. If anyone decides to break away from the process and apply to court then the collaborative lawyers will be able to refer you on to other lawyers to deal with the litigation.  They are forbidden from continuing to act in the court proceedings themselves;

4.     Lawyer led negotiations – conducted either through correspondence or round table meetings

5.     Arbitration – you and your lawyer will appoint a qualified Arbitrator who will hear your case, and that of your partner, and will then make a decision on the basis of what she or he has heard.  This can be similar to a court hearing but is less formal, much quicker and usually more cost efficient.  Arbitration can currently only be used to deal with financial matters and not parenting issues.

6.     Court proceedings or litigation – if agreement cannot be reached then it can be prudent to submit your case to the court to decide.  Here the higher authority of the Judge can be very helpful in forcing through a decision and helping to equalise power imbalances should they be an issue.  

Solicitors must explain all of the above options to clients so that they can make an informed choice.  This obligation is placed upon them by the Solicitors Regulatory Authority and the code of conduct.  What the Mapping Paths to Family Justice report has found, however, is that this is not happening or is being done in ways that distort or restrict the client’s choice.

The report tells of clients who only became aware, for example, of collaborative practice and the possibility to have been able to sit around a table with their partner and respective lawyers at far too late a stage, namely when they had already got to court in one example;

Were you aware there are other methods of resolving the dispute apart from Collaborative Law?

“Erm, only in court. That was the only thing I was aware of.”

The report goes on to say that where practitioners were less familiar with some of the processes that this lack of familiarity effectively limited the “Client’s choice to the practitioner’s own comfort zone.”

The government has established a process called the MIAM, or the Mediation Information and Assessment Meeting partly in an effort to ensure that clients were made aware of the full range of divorce resolution methods available to them.  This is the obligatory mediation information meeting that you are likely to have to attend before being able to proceed with a children/parenting or financial application at court.

The meeting has a fairly set agenda which is supposed to include making sure that all of the options are, once again, explored and made available.  Unfortunately this provision is also failing in some cases. The report states;

“Within the MIAM process, many mediators understood their role as “selling” mediation to clients, thus limiting awareness of other possibilities.  This did not go unnoticed by some parties we interviewed and raises potential concerns around practitioners’ potential vested interests at a MIAM.”

Let us help you 

Family Law in Partnership are a firm of divorce solicitors working out of Covent Garden, London.  Our team is comprised of leading mediators, family consultants, internationally recognised collaborative lawyers, family law arbitrators and litigation specialists.  As a result, we will ensure that you are fully informed about all of the choices that you have and we can help you to decide.

It is an important decision.  

The process you choose will influence the future that you, your partner and any children can expect once all of the formalities, negotiating and legalities are resolved.  Make sure that you have all the information that you require.

If you are thinking about or going through divorce or separation, or know somebody who is, and if you want more information about the choices that you and your family have then, please, contact us today on hello@flip.co.uk or by telephoning and asking to speak to one of our family solicitors today on 020 7420 5000.