07 December 2018 - Article
Separating or divorcing is extremely difficult, especially when a couple has children. As Suzanne Kingston pointed out in her blog post earlier this week (bit.ly/1Sfko9W), the process can be even more difficult on the children themselves. Children do not fully understand what is going on and often take responsibility for what is happening. It is not uncommon for children to blame themselves and feel guilty about their parents' break up and to think 'my parents are fighting because I've been naughty' or 'if only I could be better, my parents might stay together'. Parents want to do what is best for their children, but it can be especially difficult to co-parent when one is going through relationship breakdown and possibly experiencing feelings of bitterness or anger towards one's partner. Thankfully, there are forms of non-court dispute resolution which can make the process less painful for parties and, as a result, their children. These are:
- Negotiations through solicitors — many disputes can be resolved directly through solicitors. Resolution is a membership organisation of 6,500 family lawyers and other professionals who believe in a constructive, non-confrontational approach to family law matters. Working with lawyers committed to finding a pragmatic, amicable solution to a couple's dispute will reduce acrimony, diffuse tension and help parents remain child-focused.
- Mediation — this a voluntary and confidential form of alternative dispute resolution in which the couple involves a neutral, impartial mediator to help them reach a negotiated solution to their dispute. A mediation assessment and information meeting (MIAM) at which a qualified mediator will provide information about mediation and other forms of non-court options is now required in most cases before parties are able to initiate court proceedings.
- Collaborative law — this is a voluntary, confidential dispute resolution process in which each party instructs collaboratively trained lawyers who conduct without prejudice negotiations during four-way meetings. All parties must sign a participation agreement to resolve the dispute without involving the court (except to approve and formalise any agreement reached) and if the process breaks down the parties must instruct new lawyers.
- Arbitration — this is a voluntary process in which the couple enters into an agreement to appoint an arbitrator to adjudicate a dispute and make a decision which is binding on them. While arbitration has been used for financial and property issues, from next year it will also be available for certain children matters.
The methods described above have much in common: they are voluntary, confidential and quicker than litigation. They also provide a couple with greater flexibility and control over the process because, for example, the parties decide how they are going to deal with disclosure and when and where meetings will take place. None of these methods replaces the need for parties to take independent legal advice, but if they are undertaken by parties acting in good faith these methods may prove less stressful (and less expensive) than court proceedings. Litigation should only ever be used as a last resort. It is important for couples to realise that while their relationship as partners or spouses may be over, their relationship as co-parents will continue. That is why it is so important to put #childrenfirst.