If you believe everything
you read in your Sunday morning newspaper then January is supposed to be the
time of year when family lawyers are inundated with disgruntled couples, clamouring
to separate after having one too many arguments over the festive season.
However, after spending
January with the B P Collins family practice group as part of my training
contract, I struggle to find truth in this urban myth.
Throughout this seat I have
come to appreciate how divorcing someone is simply not a rash action made after
a tricky holiday period but a long-considered decision. Even where one party
has made the decision quickly (perhaps after discovering infidelity) it is
never a decision that I have seen taken lightly.
In my experience people who
have thought rationally and sensibly about the future of their relationship
will approach the process of resolving any consequent dispute (whether relating
to children or money) with similar care.
Some people will agree
everything between themselves, around the kitchen table so to speak, and will
just come to us to make the agreement legally binding. Others will have no
alternative but to go to court, perhaps where they need to establish the
jurisdiction of the English court for their case.
However, many couples will
fall somewhere in between these two extremes: they need some professional
assistance to decide children or money queries, but they want to retain
ultimate control over the outcome rather than ceding it to a judge (although,
even when court proceedings are started, negotiations almost always continue
alongside).
Since joining the Family practice
group, I have been surprised by the number of flexible options available to
separating couples and how the solicitors here will often tailor a bespoke
solution to those particular individuals both in the agreement itself and the
method of reaching that agreement. Mediation and solicitor negotiation are two
alternatives I have seen work well.
Mediation involves an independent
and impartial mediator facilitating discussions directly between the separating
couple. With the informed guidance of a solicitor in the background, combined
with the neutrality of the mediator, this can be a very successful means of
resolution which allows the individuals concerned to retain control and find
the appropriate solutions by working together, albeit with an experienced
professional present to guide discussions and help “sense-test” potential
outcomes.
Whereas a Solicitor
negotiation requires a delicate balance between pursuing the client’s
objectives and advising on what is within a reasonable band of outcomes. It is
the solicitor’s role to obtain the best possible agreement for their client,
while always keeping them informed of what the best alternative to the
negotiated settlement is. Solicitors must help the client assess the
cost/benefit analysis between conceding on certain points to avoid the stress
and expense of an on-going battle, without losing sight of the client’s goal.
The advantage to allowing a
solicitor to negotiate is that the individuals do not have to have direct
contact with their former partners. Many couples, particularly with children,
prefer not to have direct discussions, but rather to keep the heat out of potential
disputes by allowing their solicitors to resolve things at arms-length.
The myriad of options
available in the family arena has inspired a genuine interest in the different
ways of resolving disputes and I look forward to exploring this from a different
angle in my next training seat in the Litigation & Dispute Resolution
group.
Posted by Rebecca Mitchell, trainee in the family practice group.
Rebecca started her training contract in September 2013 after graduating from Newcastle University with a 2:1 (BA Hons) in History. She undertook the Graduate Diploma in Law at Kaplan Law School and has recently completed the Legal Practice Course with distinction.
