I pick this article back-up with a look at arbitration, the closest parties will come to the court process without having to go to court. It is a form of dispute resolution that takes place out of the courtroom. Both parties will appoint a suitability trained and qualified arbitrator, their decision is final and binding upon the parties.
The benefits of arbitration are that parties are able to resolve disputes in a less formal setting. The process is often quicker than court proceedings as parties are not dependant on the court listing and scheduling of hearings, which can often take several months if a court is particularly busy. Parties can also be ensured of continuity, instructing the same arbitrator throughout the process, opposed to court proceedings where you may see a different judge at each hearing. However, as with collaborative law, there is no power to compel disclosure and may not be suitable if one half of the couple is hiding assets although the arbitrator can draw adverse findings if satisfied that something has not been disclosed and can also award costs. Indeed, engaging in arbitration is something that both parties must be willing to do.
This is a viable alternative dispute to the court process for divorcing couples and can address wide ranging issues such as determining an entire financial award down to a narrow issue such as how to deal with a pension. There are also arbitrators who specialise in determining arrangements for children.
It may feel like you are “going private” as you do pay the costs of the arbitrator as well as the costs of your lawyer but you may feel this is worth it to get a final decision more quickly, in a more comfortable environment than the court and by an arbitrator who you can be confident is a specialist in family law rather than a Judge who may have been a lawyer who specialised in a different area of law. The other benefit to an arbitration process is that it is completely confidential so that there are no risks of the press attending your hearing as they sometimes can do if your case is in court.
The flexibility and the fact that you will get a final decision more quickly can make arbitration more cost-effective than court.
Negotiations via solicitors
This is probably the most common way in which most matters are resolved. Lawyers are both specialists in the law and will know what the likely outcomes might be, and they will also be experts in negotiation and how to present your case in the best possible way. The process essentially involves solicitors negotiating on divorcing parties’ behalf. If the matter concerns financial arrangements, then there needs to be an exchange of financial disclosure so that there is a full understanding of what resources are available. Negotiation can then take place over correspondence, by telephone discussion or sometimes via what is known as a roundtable meeting where both parties and their lawyers are present.
However, if negotiations break down then court or arbitration may be the only alternatives available. It is important therefore that negotiations do not continue for too long if it is evident that an agreement cannot be reached because if you commence either the court or arbitration options too late this will increase the costs beyond those originally anticipated. However, with arbitration it may be that the negotiations have narrowed down the issues to only a few points, which the arbitrator can be asked to decide upon therefore saving the costs of arguing about everything. It is important to ensure that a timetable for disclosure and negotiations is set out by the parties’ solicitors from the start to ensure that matters are not allowed to drift over many months without moving forward.
Whichever way you go
Ultimately it is important to note that whichever chosen approach to resolving matters voluntarily and without court proceedings, both parties must be motivated by a shared desire to be open, transparent, pragmatic and compromising.
Without such an approach any method of Alternative Dispute Resolution is unlikely to be successful. In conclusion, I revert to the age-old adage delivered to many clients by their solicitors, “it is often better to have an agreement you can both live with, rather than an order imposed on you by the court which neither of you is happy with”.
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