Mr Justice Holman has, in the recent case of Ekaterina v Fields, told the couple that divorce court fights are “awful” and has urged her to try and reach a settlement with her estranged husband.

The couple have been married for about 10 years, have two children and are fighting about the division of assets worth around £6,000,000. The court also heard that the dispute could cost the couple more than £1,000,000 in legal fees.

Mr Justice Holman has told them that there should be serious discussions between the couple and their legal teams to see if a settlement could be negotiated. He described litigation in the family courts as “a boxing match”. He has also told them to think about what they could have done with the £1,000,000 that they will have spent on legal fees.

Clearly, this case and the fees are exceptional and most couples who separate do not have that level of legal costs although for them, the strain of having to pay legal fees remains the same.

For many couples going through divorce, they may have shunned alternatives to litigation or found that the alternatives have not worked. As our experienced family mediator and family solicitor, Vicky Medd says “Couples may have attempted to mediate or resolve their disputes on an amicable basis before and found that it has not been successful. This does not mean that they should not try again. The longer that litigation goes on for, with the cost and the stress of those proceedings, the more “weary” people become. Quite often, both want to try and resolve things but feel that there is little hope in doing so. This is as good a time as any to try and mediate”.

There are all sorts of alternatives to litigate, and this article explores them in some detail.

Mediation

Mediation is where the couple sit with a mediator (preferably in the same room although there is provision for “shuttle mediation” where both are in different rooms and the mediator shuttles between them) and try to negotiate some form of financial settlement, or settlement involving the children. Mediation can be extremely useful and has the benefit of being far cheaper than going through court proceedings. At Ridley & Hall Mediation, the cost of an initial assessment appointment is £100 plus VAT of £20 and there are also fixed fees for 1 hour mediation sessions of £150 plus £30 VAT per person per session. Generally, unless the case dictates otherwise, disputes are resolved between two and three sessions. The advantages of mediation are the speed with which mediation can take place and hopefully resolve disputes and also the cost factor. In addition, couples can find a new way of communicating to try and resolve their differences about both finances and children enabling them to have a healthier communication for the future. The downsides of mediation are that the couples come to mediation on their own and are expected to negotiate for themselves. Agreements reached in mediation are not legally binding although on financial cases, the agreements reached can be incorporated in to a court order by solicitors instructed by the couple. Legal aid is available for mediating couples and Ridley & Hall Mediation does have a legal aid contract with the Legal Aid Agency.

Collaborative Law

This is where couples instruct their lawyers who have been specially trained to work with them to try and resolve their dispute. They sign up to an agreement which means that they will try to make all efforts to settle their case without the necessity of litigation and that if they do have to go through litigation, they will instruct another lawyer. Generally, after each client has seen their solicitor, the solicitors arrange either a telephone meeting or a face to face meeting to discuss the issues that are important for their client. A four way meeting is arranged, with two solicitors and two clients and both provide a statement as to how they wish to resolve their dispute at the start of that session.   Generally again, there are at least a couple of sessions to try and resolve issues. The advantage of this is that clients feel supported throughout the process by their solicitor. At the end of the process, an order by consent in connection with financial matters can be drafted to reflect the agreement that has been reached. In addition, the process is far speedier than going through the family courts. On the downside however, the costs are significantly more than mediation and if the talks do break down, the couple then have to seek new solicitors to act on their behalf and there may well be a duplication of costs.

Family Arbitration

Family arbitration is a relatively new concept to family cases and there has not been a large uptake for this particular form of alternative dispute resolution. However, it does have significant advantages where a couple are deadlocked on a particular financial issue. Family arbitration is not available for resolving children disputes but can deal with financial issues consequent upon divorce or where cohabiting couples separate. Essentially, the couple instruct an arbitrator to deal with their case. The solicitors will speak to the arbitrator and establish ground rules and how the case is going to be resolved and whether or not costs are going to be considered. The solicitors and arbitrator then timetable the case for a hearing where the arbitrator hears from both clients and makes a decision after hearing the arguments put forward by both. The client do have to pay the arbitrators fees but the advantage over court proceedings is that the arbitrator and the solicitors set the timetable so there may be less work involved than would be the case if the case went to court. For example, if court proceedings are issued, there are generally at least two court appointments before a final hearing this increases in the costs for both parties. Both parties have to file Form Es and answer questionnaires. The arbitrator can decide how information about financial circumstances is dealt with and this can be done in a more cost effective way than the court would normally order. Vicky Medd, head of family at Ridley & Hall was one of the first solicitors to use the family arbitration system in West Yorkshire in a case that she dealt with; “I found the arbitration system really useful and a lot more cost effective and speedier than resolution through the courts. The couple in the case that I was involved in were stuck on a couple of issues. The assets in the case were not massive and they would have spent thousands in litigation in getting a judge to make the decision on their behalf. The arbitration process consisted of one meeting between the arbitrator and the two solicitors who were involved in the case and the arbitrator gave a list of directions and the case was timetabled through. All in all, the arbitration process took three months rather than six months to a year in financial cases that go through the Courts.”

What stops people using alternative forms of resolution to the courts?

Quite often, we find in family cases that emotions are running extremely high and neither client trusts the other person in the dispute. To use a form of dispute resolution such as mediation, or collaborative law, does require trust on both sides and quite often, couples are not ready to trust the other person in the process. As a mediator, Vicky Medd is all too aware of the reservations that people have about going in to the mediation process; “When I initially assess the case as suitable for mediation, clients often express doubts as to the commitment of the other person in the dispute to the mediation process. People do not trust each other to be as keen as they are to find a resolution to the dispute. From my experience, when mediation works, it can work really well. Both people do need to be invested in wanting an outcome and sometimes, when mediation has broken down, it might be that the timing is simply not right. This does not mean that mediation should be ruled out again. Further down the line, both clients have spent more money and still not resolved their issues so they are more likely to be invested in getting a satisfactory outcome.”

Quite often, once litigation starts, couples become locked in the litigation process and the desire to be “proved right” to a judge. Sadly, the family courts do not work in this way. They do not tend to apportion blame but look at the factors that they have to take in to consideration when dealing with a financial case. In most cases, the couples’ needs are very important to a court as both need to find somewhere to live and obviously, children’s needs are very important as well. Quite often, there is simply not enough money to go round to provide both with all of the resources that they need. These cases can quite often be very difficult to settle out of court as both need to recognise the other’s need in reaching a settlement.

In addition, clients feel that they are showing an element of weakness if they go through alternative ways of settling their claim. They feel that this shows the other person that they want a settlement more than they do.

Couples should also bear in mind that they rarely get out of court all that they want in a case. The court rarely have “winners” and “losers”. Judges have a very wide discretion to deal with cases and different judges deal with cases in different ways. This does not mean that they are wrong – they have a very wide discretion to apportion finances in the way that they see fit provided that they have applied the law correctly and have applied the facts of the case correctly.

For more information about family mediation, please contact us on 01484 538421 and ask to speak to Vicky Medd.