As seen on Family Law Week. To kick off Family Mediation Week (27-30 January 2025), Paul Wild, Partner and Head of Department, and Alexandra Hawkes, Trainee Solicitor, discuss your alternatives to going to court during your matrimonial proceedings.
Paul Wild is both a qualified mediator and a collaboratively trained Lawyer with nearly 25 years of legal experience as both a Solicitor and as a Partner.
Any form of separation and divorce can be a challenging time, both emotionally and financially, but resolving disputes doesn’t always have to involve lengthy and costly court proceedings. In this article we consider various out-of-court options to help you and your ex-partner reach agreements in a way that’s constructive, cost-effective, and tailored to your unique circumstances.
Why Consider Out-of-Court Options?
Court proceedings can be lengthy, expensive, and stressful. Out-of-court solutions offer a faster, more private, and collaborative way to resolve disputes, helping you maintain control over the decisions that matter most.
Mediation: Finding Common Ground
Mediation is a voluntary process where a neutral mediator facilitates discussions between you and your ex-partner to help resolve disputes. This approach prioritises open communication and mutual decision-making. Our mediator contacts, who are also experienced solicitors, provide legal information (though not legal advice) to assist in exploring practical solutions.
Mediation can address a wide range of issues, including:
- Parenting arrangements: Where children will live, how holidays and special occasions will be shared, and approaches to co-parenting communication.
- Financial matters: Division of assets, including pensions and property, as well as interim financial arrangements.
Key benefits of mediation include:
- Cost-effectiveness: Mediation is often less expensive than court proceedings, with costs typically split between the parties, and without barristers’ fees.
- Control and flexibility: You dictate the pace and agenda, tailoring the process to your needs.
- Preservation of relationships: By fostering cooperation, mediation can help support amicable relationships, especially important for co-parenting.
Legal Advice: though not a requirement, all parties are entitled to independent legal advice during the mediation process if they so choose from another individual as their solicitor.
Whilst traditionally conducted with both parties in one room with the mediator, mediation continues to be an option for couples who may not wish to sit face-to-face, as it can be conducted by shuttle, where the mediator moves between the parties who are sat in different rooms. This can be helpful when seeing your ex-partner might be too stress inducing, or impact on decision making. Hybrid mediation, where parties are accompanied by their lawyers, may also be a suitable option for some couples, combining legal advice with mediation.
Another option is for the mediation to be conducted remotely, by way of Teams or by Zoom with all parties’ agreement.
In addition, it is possible for the parties to co-mediate (where there are two mediators present alongside the parties) – this can be helpful where the parties believe there is a need for balance or a perceived imbalance, and can assist the parties in feeling supported and heard.
Collaborative Law: Negotiate Together
Collaborative law offers a positive and constructive approach to resolving disputes during divorce, focusing on co-operation rather than conflict.
A Participation Agreement is signed, positively committing everyone to keeping the process out of court. Importantly, both parties continue to receive independent legal advice from solicitors trained in collaborative practice, allowing them to work together to reach an amicable settlement without going to court. These solutions can be far more flexible and creative because the parties are working with rather than in opposition to each other.
This approach fosters open communication, helping to preserve relationships, particularly when children are involved. It ensures privacy, gives you control over the pace and outcome, enables tailored solutions, and reduces stress and costs compared to court proceedings. Discussions are structured, respectful, and may include input from other third-party professionals/specialists such as financial advisors or family therapists for additional support.
Collaborative law works best when both parties are committed to finding common ground and supporting a constructive dialogue. It’s an excellent choice for those seeking a respectful and dignified way to finalise arrangements for finances, property, or children.
Private Hearings: Tailored and Efficient Resolution
For couples seeking privacy and control, private hearings offer an alternative to court. These hearings can replace traditional court-based Financial Dispute Resolution (FDR) hearings or final hearings, obtaining non-binding guidance to reach an agreement.
Key features include:
- Choice of private judge: You can select an experienced barrister or retired judge to oversee the process.
- Flexibility: Schedule hearings at a time and venue convenient to all parties.
- Efficiency: Avoid delays associated with overburdened court schedules.
If an agreement is reached in a private hearing, it can be formalised into a legally binding court order without further litigation. While private hearings involve additional fees, the potential savings in time, stress and overall costs often outweigh the specific Hearing costs.
Arbitration: A Binding Decision Without Court
Arbitration is another out-of-court option where a chosen arbitrator (again, usually a senior solicitor, practising barrister, or retired judge) makes a legally binding, enforceable decision after reviewing the facts of your case.
This method of dispute resolution is particularly suited for financial disputes and offers benefits such as privacy, speed, and the ability to select an arbitrator with specific expertise. While arbitration does involve fees, it often provides a quicker resolution than court proceedings, particularly if there are limited issues that are in dispute.
How Herrington Carmichael Can Help
If you are interested in exploring out-of-court options for resolving your divorce, contact our Family team today. At Herrington Carmichael, our team includes solicitors experienced in all aspects of family law, all of whom are members of Resolution, who can guide you through these processes. We understand the emotional complexities of separation and divorce and aim to provide empathetic, practical support tailored to your specific circumstances and needs.
If you are considering the Collaborative process or mediation, please contact us and ask for Paul Wild, who is both a qualified mediator as well as having many years of experience as a Collaborative lawyer.