Posted: 25th July 2016
I have been asked this twice this week in WIRE meetings. Most people have heard of Mediation and have a general idea of what it’s about. You might even have seen the recent fly on the wall programme on BBC2 “ Mr & Mrs Call the Mediator” Fewer have heard of Collaborative procedure.
Both are forms of Alternative Dispute Resolution; a method of sorting family problems as an alternative to Court proceedings or letting solicitors sort it out for you.
They have some things in common. Both aim to help people agree arrangements for their family, most often financial or in relation to children after separation but possibly also how to recognise the end of the relationship. To do this the mediator or collaborative family lawyers (CFLs) will help the parties to communicate effectively and constructively, to share information, identify potential solutions and reality test them.
Mediators and CFLs both have a” toolkit” of skills from their professional training and experience to help them do this and will have screened each case for safety before they begin.
In mediation the mediator is completely independent so they will never take sides and they will never give advice. Indeed, most mediators have no legal qualifications. They may provide information or direct clients to someone who can give advice if there is a need for that. A mediator will never tell you what you should do.
An “agreement” reached in mediation is never binding; mediation can’t make it binding. You will still need a lawyer for that and you may want to take a solicitor’s advice on whether you should go ahead with what has been suggested in mediation.
If mediation doesn’t work, you can still use your own solicitor to go to court. In fact, you can go to court and mediate between Court hearings if you want to.
Mediation is particularly well suited to children’s issues… after all the experts on your children are their parents not lawyers or judges.
If it works mediation is usually the cheaper option and means tested legal aid may be available. Sometimes it works, sometimes it is a partial success.
In collaborative procedure your solicitor or lawyers whose job is to look after your interests is there with you all the way.
In Collaborative procedure you, your former partner and your CFLs sit round a table together with coffee and biscuits (perhaps not chocolate in this hot weather!) and with a joint problem solving approach sort it all out together.
Sounds lovely in theory doesn’t it?
Of course it’s not lovely. We know it’s not…it can be hard work and yes there may be times when you want to tell you ex where to put the chocolate biscuits. But that’s where the skill of the CFLs comes in and collaborative procedure has some special features that help.
You will both be asked to sign an agreement to say you won’t go to court or threaten to go to Court. If you change your mind about that or if the process breaks down, you will both have to change lawyers and start all over again by a different process.
And at the beginning we help you and your partner to identify your common interests. They will be personal to you and might be anything from “having a dignified divorce and never having to speak to you ever again” to “doing what’s best for our children”.
In collaborative procedure you do have legal advice in the presence of your former partner and their solicitor. And you will hear their advice so it’s very open…no strategies or game plans. The legal paperwork will be done in the same meetings.
Collaborative procedure may be better suited to complex finances. It is more expensive than mediation but it does have a fantastic success rate.