Losing your job, moving house and getting divorced are three of the most stressful life events that you may experience. But why is getting divorced so stressful? Senior Associate Sarah Havers and Associate Tim Carpenter in our Divorce and Family team, look at alternative ways of approaching the divorce process to diminish stress, offering four practical steps.
When your spouse tells you “I want a divorce” you are often catapulted into a maelstrom of lawyers, unplanned expenses and important life decisions. All while going through what is, for many people, the most emotionally turbulent period in their lives. The end of a marriage can, for some, be akin to the grief of losing a loved one. This in turn, will invariably lead to high levels of stress, which can add further fuel to a sometimes already roaring fire.
Going all the way to a contested multiple-day final hearing will take its toll, not only on the wallet but also emotionally and mentally. It also could take the best part of 18 months to two years to resolve. If there are children in the family, then no matter how much one tries to shield them from their parents’ dispute, they will often be adversely affected.
In an effort to counter the stress, cost and time of contested court proceedings, whether about money or children, various alternative options exist. In our Divorce and Family department, we have witnessed a shift towards these alternatives in recent years, particularly as the courts have become ever more congested as a result of cuts to the funding of the justice system. A number of our partners are now trained mediators and/or collaborative lawyers, and we regularly arbitrate matters or engage in voluntary out of court proceedings. All the alternatives, described below, have the advantages of being cheaper, quicker and less stressful.
Mediation is one of the most popular ways to resolve issues in a divorce. In most cases, the parties will need to tell the court that they have considered mediation before they can commence the court process in relation to finances or children (although this is not a requirement that has to be met in order to file a divorce petition).
Mediation is a confidential process designed to bring the parties to a settlement facilitated by a third party, an independent mediator. The mediator does not make any decisions as to the issues in the case like a judge or arbitrator will, but works with both parties to try and come to a settlement. It is as common for parties to mediate one sticking point that is preventing full settlement (for example, the division of the chattels in the matrimonial home) as to mediate all the issues in one go. There can be a psychological benefit to reaching a consensual resolution with a good experienced mediator. Mediation can also be a quicker way to settle issues on divorce, although it is not necessarily a cheaper option.
The collaborative approach is based on both parties (and their solicitors) agreeing in writing that they will not go to court. This will be signed at the first meeting. As a result of this agreement, if one party decides to make an application to the court further down the line, both sets of solicitors have to stop acting, and the parties must find new representation. This provides a built in incentive for the parties to stick with the process once they have started. Only solicitors who are specially trained in collaborative law can be involved in this process.
With regard to financial issues being considered collaboratively, the meetings between the respective solicitors are held on a without prejudice basis so the discussions cannot be referred to at any future court hearings. There will likely be multiple meetings between solicitors, with financial disclosure being exchanged. All meetings are held as “four-way” meetings, ie both parties and their lawyers sit around the same table to discuss and negotiate the issues. It is a requirement that both sides agree that their lawyers will not send each other letters, which can often ramp up tensions.
Essentially, signing a collaborative agreement and choosing this alternative to litigation removes much of the animosity, toxicity and strategy from the negotiations. Understandably, however, this alternative does not work for every couple, as it requires both parties to be in an emotional state that allows them to sit across the table from their ex-spouse and discuss the division of their finances.
Arbitration is, in effect, a private version of court proceedings. In arbitration, the parties will agree that the issue(s) between them should be resolved by a third party (the arbitrator) who is an impartial and independent specialist in that field of law. The parties will agree on the choice of arbitrator and agree to be bound by the determination, which will then be incorporated into a court order.
There are many advantages of opting for arbitration and avoiding a contested court hearing, which all contribute to a more stress-free experience:
- it will generally cost less and be quicker
- it is confidential, so there is no risk of press involvement or being seen entering and exiting a court building
- hearings can be arranged at times convenient to the parties, including on the weekend
- the arbitrator will be entirely focused on your matter rather than having to deal with multiple cases that day, and
- the parties can agree to choose what level of disclosure and documents are submitted before the hearing.
Even if you do not decide to choose mediation, collaborative law or arbitration, the elements of the court process for financial claims (ie disclosure and settlement meetings/hearings) can be mirrored voluntarily.
Parties can agree, voluntarily, to exchange financial disclosure and settlement offers. Following this, direct negotiations, a round table meeting and/or a private Financial Dispute Resolution (FDR) hearing could take place.
The FDR is part of the compulsory in-court procedure, but this can be replaced by a private FDR, albeit at an additional cost for the ‘judge’s’ fee. At a private FDR hearing, a ‘judge’ (usually a practising senior barrister) will hear submissions from both sides and indicate the likely outcome of the issues if the matter was to go to an in-court final hearing. This indication will be used to kick-start settlement discussions as both parties by that point will have heard from an independent family law expert what they each may gain or lose at a final hearing.
Overall, approximately 95% of financial remedy cases settle at or shortly after an FDR, although the rate of success is generally higher with a private FDR as the ‘judge’ will have had proper preparation time and is able to provide a detailed and reasoned indication having considered all the relevant facts. They can also be available for the whole day to assist the parties in their negotiations and to help resolve any sticking points.
All of these alternative processes can lead to an early settlement of your case, saving time, legal costs and emotional stress. However, they all require agreement from the other party to commit to the chosen process. If your relationship and communication have completely broken down and respective positions are polarised, then the normal court process may be the only appropriate option available. But if you find that one of life’s biggest hurdles is suddenly staring you in the face, then take comfort in knowing that there are options available to you that can reduce the inevitable stress and anxiety that will be coming.
This article appeared in Issue 2 of Mindset magazine, which was published in January 2020.
Stewarts has partnered with Mindset Magazine, a new bi-monthly publication covering the topic of mental wellbeing. Mindset Magazine’s mission is to help drive forward positive changes in our understanding and treatment of mental wellbeing, and become a leading source of information dedicated to the health of the mind.
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