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

  • Describe the various forms of alternative dispute resolution
  • Explain how it differs from resolving divorces in court
  • Explain how collaborative law works

“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.

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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.

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.

If your client is on good terms with their partner despite the breakdown of their marriage, it may be possible for them to reach an agreement directly between themselves. This will unquestionably be the cheapest option for your client as they will have avoided instructing a solicitor or other family practitioner to assist with the discussions and conduct the negotiations.

For cases involving complicated assets or a non-disclosing spouse, direct discussions would not be recommended without, at the very least, a solicitor advising in the background to help the client make informed decisions.