John Hooper & Co

Solicitors

Newsletter 25 – Is Collaborative Law or Co-operative Law or Alternative Dispute Resolution the answer to resolving Family Law problems

IS THERE ANOTHER WAY?

As the cost of litigation continues to rise, alternative methods of resolution of disputes have acquired prominence.

Generically called Alternative Dispute Resolution (ADR), the Family Law models are mediation and, more recently collaborative law. Both involve negotiation rather than litigation.

By fully participating in the process, parties may feel a greater sense of control over their own destiny. Contrast that situation with the imposition on the parties of an Order made by a Judge who, although very experienced, has only a limited time within which to form an opinion and make a decision – a decision which will have long term implications and which may not please either party.

Unfortunately, both mediation and collaboration law have pitfalls in their respective processes.

Mediation requires the willing attendance of both parties before a mediator. The mediator is not able to give advice but endeavours to encourage the parties to express their respective positions to the other.

If this is done in an adult, constructive way, progress can be made – perhaps to the point where an agreement is reached. At that stage the parties are strongly encouraged to take advice from their respective solicitors to ensure that the outcome that is proposed is fair and reasonable. Mediation is unlikely to be appropriate where one party feels intimidated or disadvantaged by the other and is not suitable at all where there has been domestic violence – whether physical or mental (e.g bullying).

Collaborative law involves the attendance by both parties with their solicitors at a round table meeting or series of meetings. As with mediation, it is an essential pre-requisite that both parties have fully disclosed their financial circumstances. Sometimes other professionals such as Accountants, Financial Advisors, or Pensions Experts attend one or more of the meetings to advise upon the effect of a particular course of action under discussion.

On the face of it, such a process, again assuming that there is no underlying disadvantage to either party, appears to offer a constructive means of achieving a negotiated solution without the expensive involvement of the Courts.

However, it is not necessarily a cheaper option than Court proceedings.

Furthermore both parties have to agree at the outset that in the event that the negotiations break down each party must consult entirely new solicitors to act for them in the future Court proceedings. This produces delays and a duplication of legal fees.

At John Hooper & Co we endeavour to engage in negotiation where possible. That may be by way of exchange of proposals by correspondence or by participation in meetings. The format of the meetings is determined by the parties’ wishes. The negotiations and meetings can proceed in parallel to financial proceedings if it is felt that a timetable needs to be in place to ensure that the matter progresses appropriately.

If the negotiations are successful, an application to the Court for an order by Consent (no attendance required) can be submitted.

In the unfortunate event that the negotiations are not successful, continuity of representation within the future negotiations or Court proceedings ensures that the matter proceeds to a conclusion as quickly as possible and that there is no duplication of costs (this is not the case in Collaborative Law where a new firm effectively has to take over the case and start afresh).

go to: News Contents Page

__________________

__________________