Coronavirus Blog Series: Family Disputes – Alternatives to Litigation
Published 12 October 2020
As a result of the Covid-19 pandemic and the regulations concerning social distancing and restrictions on numbers in enclosed spaces, the ability to hold a physical hearing in Court has been significantly impacted upon. This difficulty leads to an exploration of alternatives to litigation to resolve family disputes.
One such alternative is the Collaborative Law model which enables couples who decide to separate or end their marriage to work together to find a solution which can then be confirmed in a formal agreement and ultimately presented to a Court alongside a Petition for a Divorce. It is based on both parties and their lawyers agreeing in writing not to go to Court. This is confirmed by way of a written agreement which is executed by all parties including the Solicitors at the first face to face meeting. This means if one party decides to go to Court after negotiations, both Solicitors have to stop acting and both parties have to change Solicitors.
There is a strong incentive, not least in current conditions, to adhere to the collaborative law model as a viable alternative to costly and protracted litigation. It involves a series of direct meetings usually at the office of one or other Solicitor and it involves full and transparent exchange of financial documentation to allow informed decisions to be made. The advantages of collaborative law is that it is a strong incentive for both parties to work constructively towards a settlement because the alternative is a more lengthy and acrimonious process through the Courts. The partners have to be committed and feel that there is an equality of knowledge and negotiating experience. The presence and support of Solicitors helps to prevent unnecessary friction. Costs of the process should be discussed and agreed early in the process.
The other principle form of alternative dispute resolution is Mediation. It is another trusted and reliable alternative to litigation to resolve family disputes and/or make arrangements about children, finances and other personal matters post separation and/or divorce. Negotiations are held in a principled way. Through an independent mediator who meets with the parties and facilitates the negotiations. It is not a form of relationship guidance or counselling. The process is adapted to the particular circumstances of the individuals. At the outset a Memorandum of Understanding is drawn up and executed so that if an agreement is reached it can be converted to a formally binding agreement and made a Rule of Court on the presentation of a Divorce Petition.
Mediation works best if both former parties have supportive advice and guidance from their own Solicitors, especially if those negotiations involve financial issues. The mediator however is independent and cannot be a member of either lawyer’s firm. Mediation is not appropriate if there is an imbalance or inequality of power between the parties for example a history of bullying, violence or coercive control. Both partners have to be focused, committed to the process and prepared to compromise. It can focus on financial issues or arrangements for the children post separation or pending a dissolution of the marriage or both.
MKB Law Director and Head of Family Law, Anne Marie Kelly, is a trained Collaborative Lawyer and an accredited Mediator. Should you require any further information or assistance on the points discussed above, please contact Anne Marie Kelly at MKB Law.