Last month we looked at how divorcing parents' arrangements regarding children can reach their expiry date, and we finished with a question.
If the old arrangements are no longer working, how do you replace them? This month, we will provide the answer. Or rather, the TEN answers.
Not so long ago, if you were considering divorce, there were only two obvious routes: consult a solicitor or try mediation. Depending on your circumstances there are now as many as ten different options.
These options differ in cost, in speed and in how adversarial they are, and those three things do not always move together - for example, if you are off to court, being a litigant in person is the cheapest option, but it’s one of the most punishing.
The list below runs roughly from the least adversarial to the most.
Costs vary enormously with the complexity of a case, so treat the comparisons below as relative rather than absolute.
Options 1, 2 and 9 are the cheapest as lawyers are not involved. With the other options, it’s only possible to provide an indication of the potential costs when the detail of the case is known.
Before you read the list
Please note that not every route is open to everyone - for example, where there has been domestic abuse or coercive control, where one party is concealing assets or refusing to disclose, or where there is any risk to a child, the routes that depend on goodwill and co-operation are not suitable.
In those situations, the court is not the failure option. It is the protection.
1. Kitchen Table
The parties agree on matters between themselves. Not many are able to do this.
Who it suits – couples with straightforward finances, no significant imbalance in knowledge or bargaining power, and enough goodwill left to sit down together.
Advantages – normally preserves an ongoing relationship between the parties and saves spending money on lawyers.
Disadvantages – without professional advice an unfair settlement may be reached, which neither party may realise until much later.
2. Mediation
A suitably qualified person helps the parties reach agreement.
Who it suits – parties who are both prepared to be reasonable and fully disclose their finances.
Advantages – compared with other processes where lawyers are involved, it is cheaper, quicker and less confrontational.
Disadvantages – it relies on both parties being open, honest and reasonable. A mediator cannot compel disclosure and cannot impose a decision.
3. Collaborative
The parties and their lawyers meet to narrow the issues and reach agreement.
Who it suits – parties who want lawyers involved but do not want a fight, and who can commit to settling rather than posturing.
Advantages – round table meetings avoid letter writing and cut through the issues, saving time and legal fees. Everyone in the room, lawyers included, is incentivised to reach a settlement.
Disadvantages – it requires both parties to agree to collaborate, and it requires collaboratively trained lawyers. Not all lawyers are.
4. Early Neutral Evaluation
A judge or barrister evaluates the case and tells the parties what a fair settlement would be if the case came to court.
Who it suits – cases where the parties want to know the merits of their position so that they can then try to reach a reasonable compromise.
Advantages – The aim is to reach a reasonable settlement without incurring significant legal fees.
Disadvantages – it does not guarantee a settlement, so the fees spent on the process can be wasted.
5. Arbitration
The parties decide to avoid the delays of court hearings and opt for a private hearing.
Who it suits – parties who want a binding decision, want it in private, and want it at a time that suits them.
Advantages – the matter is resolved by a confidential hearing with no publicity, without the delays of the court system, and before a decision maker the parties have chosen, rather than one imposed by the court.
Disadvantages – both parties must agree to arbitrate, and on top of their own costs they must pay the fees of the arbitrator and any room hire.
6. Med/Arb (Mediation and Arbitration)
The parties mediate and agree what they can, then settle whatever remains by arbitration.
Who it suits – parties who want the flexibility of mediation but need the certainty of settling the last few sticking points.
Advantages – saves time and money and offers a reliable way of reaching a settlement without ending up in court.
Disadvantages – both parties must agree to use the process.
7. One Lawyer, Two Clients
Provided there are no areas of dispute one lawyer (especially qualified in this process), can advise both parties.
Who it suits – couples who are basically in agreement, with uncomplicated finances that are transparent and understood by both.
Advantages – it enables the parties to reach a reasonable settlement while avoiding the conflict and cost of the adversarial and traditional two-lawyer approach.
Disadvantages – both parties must be content to share one adviser rather than each having their own lawyer arguing their corner. The lawyer cannot take sides, and if a dispute emerges the lawyer will have to stop acting. Probably not suitable for more complex cases.
8. Direct Access
Instead of consulting a solicitor, a barrister is instructed.
Who it suits – clients who are organised, comfortable and confident handling their own affairs.
Advantages – it avoids the duplication of having both a solicitor and a barrister and is therefore cheaper. Barristers are the real technical experts and contrary to most people’s belief, their hourly rates are generally lower than those charged by experienced solicitors.
Disadvantages – it is not suitable in every case or for every client. A barrister will not run the case for you, so the day-to-day administration and contact with your spouse’s legal team will stay with you.
9. Litigant in Person
You do not have a lawyer and will therefore represent yourself in court.
Who it suits – very few people by choice. Usually those who cannot afford representation, or who have run out of funds part way through their case.
Advantages – it saves on legal fees, and in a simple, uncontested matter it can be perfectly adequate.
Disadvantages – stressful and fraught with problems. You do not know the court process, the time limits or how to prepare the documents. Mistakes are easy to make and can prejudice your case. It is also very time-consuming at a time when you are already under strain.
10. Court
The traditional adversarial route, normally involving solicitors and barristers.
Who it suits – cases where the other party will not engage, will not disclose, or where there are safety concerns. Also, cases where a point of genuine legal difficulty needs deciding.
Advantages – it produces a binding, enforceable outcome even where the other party refuses to co-operate. Where assets are being concealed or moved, or where a settlement has to be imposed, it is the only route with real teeth.
Disadvantages – very expensive, and it involves lengthy delays waiting for court hearings. Ending up in court will often damage any possibility of an amicable relationship afterwards.
The decision is not really about the law it’s about the process
As an example, a divorcing party came to us, when the costs of litigating their case were spiralling out of control. We discussed their options, and they decided to proceed by Direct Access which they found much cheaper and left them more in control.
Choosing the wrong process is one of the most expensive mistakes people make, and it is usually made in the first fortnight, before anybody has explained what their options are. There are many routes to a settlement, and what matters is the one that best fits your circumstances. That is what, at the Divorce Solutions consultancy, we help you work out.
Should you be interested, my book ‘Divorce Solutions’ describes these TEN processes, and divorce generally, in greater detail. If you would like to talk any of this through, you can book a free, no-obligation conversation with me.
If you know somebody weighing up their options, please share this post with them.
