The advantages of mediation in resolving family disputes
Divorce can be a long and difficult process, not just for the parties themselves, but also for family members, mutual friends and, crucially, any children caught in the middle. While it will never be easy, approaching divorce in the right way can help to reduce conflict and streamline the process, allowing you each to move on as respectfully and efficiently as possible. In conjunction with Resolution’s campaign this week, here are our top tips for a #GoodDivorce.
If you start divorce proceedings, it is still possible to reconcile with your partner before the divorce is final, but often by that time significant legal costs will already have been incurred and tensions may have risen.
Relationships can go through tough periods; the pressures of modern life and countless other factors can put a strain on any marriage. Many couples seek the assistance of professionals, such as marriage counsellors, as a means to address any difficulties they are facing. This can be an effective first step if you feel that things aren’t quite right.
When searching for a lawyer, you must remember that you are the client and therefore have the option of ‘shopping around’ to find the best fit for you. Divorce is a very personal matter and so the lawyer advising you should be someone who listens to and fully understands your views and objectives. Their role is to guide you through the divorce process as efficiently as possible, always with your best interests in mind. Mutual trust is very important, as is the ability of your lawyer to be open and honest with you about your case, even when something may be difficult for you to hear.
For further information on how to build your best case and fully engage with your lawyer, please see Michael’s blog on “Skin In The Game – how to get a divorce lawyer invested in you and your case” and Cady’s blog on “How to save money on divorce and build your best case”.
When a relationship comes to an end, it can be a very distressing time for one or both parties. While family lawyers are accustomed to assisting clients through difficult periods, you may consider seeking additional specialist support from a counsellor or therapist. This support can be crucial to help you work through the emotional impact of divorce and deal with any issues you may have faced during your relationship.
Beyond that, specialist divorce consultants can assist with the practical side of the proceedings (for example, assisting you to collate your financial disclosure) and divorce coaches can offer practical support (for example, through workshops on how to continue working during divorce and retreats involving spending time with others who are going through the process).
During divorce proceedings, it is quite easy to forget about the impact that the divorce can have on any children of the relationship. Children are as resilient as they are perceptive; it is very important to shield them from any conflict that may arise between their divorcing parents.
Although a divorce will bring your relationship as a couple to an end, it will not change your relationship as parents, regardless of how your ex-partner may behave during the process. Children should not be leveraged and should not be exposed to the proceedings (for example, they should not be around for conversations with your lawyer). In terms of the finances, adequate provision for the children’s upkeep should be a main priority for both parties above their own needs.
There are a number of ways for parties to keep conflict to a minimum. Once the divorce process has begun, you may consider living apart (if your financial position allows you to do so) or minimising the time you spend together at the family home. If you keep in mind that the purpose of divorce is to formally separate you and your partner physically and financially as quickly and fairly as possible, any discussions you have directly about the finances should be calm and factual, trying not to let emotion or criticism creep in.
While we all wait impatiently for ‘no fault’ divorce, specific examples in unreasonable behaviour petitions should be kept as anodyne as possible (though this may be tricky in the wake of the case of Owens v Owens). Although you may feel wronged in some way by your partner, references to their behaviour will only be relevant if that behaviour impacted significantly, and detrimentally, on your financial position. Usually this is not the case and therefore raising allegations will only serve to increase the temperature of the proceedings and prolong the process.
From a legal perspective, the starting point in any divorce is a 50/50 division of everything that was built up during the marriage. Children’s needs are always the first consideration. The overarching aim is to achieve a settlement that is fair to both parties, taking into account all the circumstances of the individual family. For example, an equal division may not be fair if one party needs more of the assets or income, or if one party contributed more to the family’s wealth in some way.
Often parties struggle to accept that, after divorce, economies need to be made by both parties. When considering a financial settlement, you should always focus on what the assets actually are, not what you would like them to be. It is also always worth keeping in mind that money spent on legal fees often only serves to reduce the amount of money available to both parties at the end. Sometimes the fees are necessary, but you should always consider benefit over cost in deciding whether to argue a point.
Court proceedings can be damaging, both financially and emotionally, and should be seen as a last resort. There are many alternatives such as mediation, arbitration and collaborative law, which can offer a faster, cheaper, more private and more dignified way to reach a settlement with your ex-partner.
For more information on the various alternatives, please see my blog on “Alternative Dispute Resolution for disagreements over children: if it's good enough for Brangelina...”.
Relationship agreements (prenuptial, postnuptial and cohabitation) are often a positive way of setting out how a couple’s financial settlement would work if their relationship was to end. While it can be uncomfortable to bring this up with your partner, agreements can take away a lot of the uncertainty and conflict if you do later decide to separate and can be tailored to your specific circumstances.
If you have experienced difficulties in your relationship, but have decided to stay together, a reconciliation contract may be a good option. Reconciliation contracts set out new relationship commitments (for example, how your partner’s behaviour could be reformed) whilst at the same time prescribing the terms of a split if the reconciliation fails. Signing a legal document of this kind can help parties to be open and honest about their needs or insecurities and work together to bring more commitment to making their relationship work.
If you are interested in finding out more about how we can assist you, please contact a member of our family team at Kingsley Napley.
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