Alternative Dispute Resolution – What is Mediation and Collaborative Law?

At Blanchards Law we offer both a mediation and a collaborative law service. These are known as alternative dispute resolution or ADR. If you and your spouse are still speaking to one another, and can communicate, one of these may well be the appropriate conciliation process for you.

Both mediation and collaborative law are suitable for married and unmarried couples, and for financial issues and children disputes alike.

MEDIATION

• This is often confused with reconciliation, but it is not designed to bring you and your spouse back together. You meet your spouse around a table, usually at the mediator’s office, and discuss your dispute. The mediator is a neutral person, who may or may not be legally qualified, and who will help to broker an agreement between you.
• Mediation is often the cheapest method of conflict resolution. However you will also need to seek advice from a solicitor first as there is little point going into a meeting without doing your homework. If we are mediating a couple, we feel reassured that they have each had their own independent legal advice and this empowers them and informs them to reach their out of court settlement.
• In addition a mediator can’t draw up the court order. They can only draft a document called a ‘Memorandum of Understanding’ which reflects what was discussed and agreed during the mediation process. So you will need a solicitor at the end to draft the court papers.
• Mediation is particularly important now, with the arrival of the Family Proceedings Rules in April 2011. The ‘Mediation Pre-Application Protocol’ states that if you want to make an application for the court hearing to deal with your dispute over a financial settlement or your children, you must have seen an independent mediator for a ‘Mediation Information and Assessment Meeting’ (‘MIAM’), unless you are in one of the exempt categories. The court will expect you to attend the assessment meeting and will wish to know at the first hearing whether mediation has been considered. The Rules say that a judge can take into account any failure to attend and may  refer you and your spouse or partner to a mediator, before taking proceedings any further.

COLLABORATIVE LAW

• This is a relatively new process from America which aims to cut out court proceedings by an agreement between the husband and wife at the outset. It consists of a number of ‘4 Way Meetings’ where both spouses sit around the negotiating table with their lawyers. There is no unnecessary work done, letters written or court papers drafted.
• All four people in the room sign a ‘Participation Agreement’ which confirms that none of them will make an application to court, and commits them to resolve the conflict in a dignified and respectful way.
• As the client, you are in the driving seat, not your lawyer. Certainly you should listen to your solicitor’s advice, but essentially you make the rules in collaboration. As long as you end up with something that is likely to be approved by a judge, you have complete freedom to structure your agreement as you both choose. Your solicitors will advise you as to the likelihood of court rejection of your financial resolution or agreement in relation to the children.
• Often a collaborative divorce takes place. This is where the couple enter into the process at an early stage, and they work together in the same room with their lawyers to decide on the grounds of the divorce and exactly what will be set out in the Petition.
• It is important for your lawyer to know what your spouse is saying, as this is not something that happens in traditional negotiations. Everyone has an equal standing in a 4 Way Meeting.
• If either one of you makes an application to court, you break the agreement and lose the right to be represented by your chosen solicitor. You have to start all over again and find a new lawyer. The idea is that you are committed to sorting out your case without going to court.

There are two main advantages behind mediation and collaborative law. One is that the clients feel that they have ownership of the decision-making and are therefore less likely to fall out about it later. The second is the fact that the work done is strictly limited to what is required and agreed, instead of a situation in the court process where a lot of time and money is spent on document preparation, most of which are never read by the judge or anyone else.