How to choose which form of ADR is best for divorcing clients

Most mediation sessions are one hour to 90 minutes long, held either in person or remotely (although arguably the former is much more effective), and attended by the parties and mediator only.

If your client or their spouse is uncomfortable being in the same room together – whether in person or remotely – then it is possible to attend “shuttle mediation”, where the mediator will spend time with one party and then relay the information to the other, moving between rooms, with a view to eventually getting everyone together.

“Hybrid mediation” involves both parties’ solicitors attending with their clients but ultimately taking a back seat and advising away from the main discussions. 

The downside of mediation is that there is not a fixed timetable beyond the commitment to the next meeting, and so the process can become drawn out if one or both parties lose interest.

The decision is also not binding, and so either party is able to renege on the agreement after being given the opportunity to seek legal advice. In that case, it is back to square one.

Negotiations through solicitors and the ‘unbundled’ retainer

It is always an option to continue negotiations through a solicitor. A common misconception is that instructing a solicitor means that a divorcing couple will invariably end up in court. That, however, should generally always be a decision of last resort.

The first step will be for the parties to exchange full and frank financial disclosure and to resolve any related queries.

Negotiations can be conducted over the telephone for more rapid progress, or in writing or at a roundtable meeting – which frequently does not involve a round table and is conducted in separate rooms. If there is a roadblock, the issue might be referred to mediation or arbitration (see below). 

This method is useful for clients who want to remain at arm’s length from their spouse, or for those who need more handholding to navigate their finances and those of their partner but still believe a dialogue is achievable within the clear framework that solicitor correspondence can represent.

A common misconception is that instructing a solicitor means that a divorcing couple will invariably end up in court. That, however, should generally always be a decision of last resort

It does, of course, incur more costs as a solicitor will be acting on their behalf. It is also possible to instruct solicitors on an “unbundled” basis, where the client manages the process and has overall responsibility, but the solicitor provides ad hoc advice as and when needed.