Alternatives to court

Most people going through a divorce or separation would rather not go to court if they can avoid it. Some of the alternatives are detailed below. Whichever approach you choose, professional assistance will help you reach a fair outcome as quickly and cost-effectively as possible.


Between yourselves

Some separating couples find that they are able to sort out things by themselves. This is great if you are able to talk usefully without the discussion collapsing into arguments. After all, you are the best people to decide what is best for you and your family. 

However, we recommend that you have at least one consultation with a solicitor. This might be before you start the discussions and will provide you with a checklist of issues to consider. You may prefer to seek advice after you have reached your agreement which will reassure you that everything has been covered and that the agreement has been properly documented.


Negotiation via solicitors

Sometimes, emotions run too high for separating couples to be able to discuss the way forward face to face. Attempts at negotiating can turn into rows and hurt feelings can surface, making discussion very difficult. Solicitors can act as a buffer between you. A solicitor will advise what your options are and what would amount to a fair outcome. They can consider offers of settlement with you, discuss whether they should be accepted, what counter-offer would be appropriate and when to consider issuing court proceedings. Your solicitor should always confirm that court proceedings are a last resort.


Mediation

A mediator will meet with both of you and help identify which issues you cannot agree on and help you reach an agreement. Mediators are neutral and will not take sides. It is recommended that you obtain legal advice alongside the mediation process. Some mediators are legally trained and will provide general legal information to both of you within the mediation where appropriate. Some are qualified to work with children in mediation.

Mediation isn't the right approach for every couple and not everyone is ready for mediation at the same stage in separating, so the mediator needs to find out whether it is suitable for both of you. It is also a requirement (with some exceptions) that anybody intending to start court proceedings should attend a Mediation Information and Assessment Meeting (called a MIAM) to find out about mediation and your other options.

Legal Aid is available for mediation in family matters so the mediator will assess your eligibility and explain charges if you are not eligible. If you are eligible, you will also be able to receive Legal Aid for advice from a solicitor alongside the mediation.

You are both likely to attend a few mediation meetings during which you may discuss arrangements for children, exchange financial information and consider your options. Once you have negotiated an agreement, the mediator will prepare a summary for you to take to your solicitor who will prepare the necessary paperwork to make the agreement binding.


Collaborative Practice

You may have already found that, during discussions with your ex-partner about financial or children issues, you have both wished that you had your solicitors with you to give advice on your proposals and to guide the discussion. That is exactly what happens in collaborative practice. 

Each of you appoints a solicitor and all four of you meet to work things out face-to-face with their support and legal advice as negotiations progress. You and your solicitors sign an agreement that you will to resolve the issues without going to court and prevents your solicitors from representing you in court if the collaborative process breaks down. This ensures that all four of you are totally committed to resolving the issues by agreement. It is likely that a few meetings will be needed to resolve all the issues. You might invite other professionals such as specialists in pensions or people trained to help children cope with the changes brought about by separation. Once an agreement is reached, your solicitors will help you put it into effect, preparing any necessary documentation to make it binding.


Family Arbitration

In family arbitration, you and your ex-partner appoint an impartial arbitrator to resolve your dispute about financial and property issues arising from your separation. You will both be given an opportunity to put forward your views and the arbitrator will then provide a decision, called an award. Both you and your ex-partner are bound by the decision reached by the arbitrator.

Unlike other alternatives, arbitration is rather like court proceedings as a decision is guaranteed after the arbitrator hears the evidence. In contrast, a mediator helps a couple reach their own settlement through agreement.