This article was written for readers who have interests in France and the UK, and are faced with the probability of a divorce, but who would like to avoid conflict and litigation at all cost.
In London it is possible to go through an amicable divorce even in what we call “High Net Worth cases”. I find myself constantly repeating myself, but it is important to do so, DIVORCE doesn’t have to mean WAR. Fortunately in the UK, we are beginning to see efforts from the media to promote the rebranding of divorce.
Here are a few examples that I came across. A few weeks ago , I was moved when This Morning presenter Alison Hammond comforted singer Paloma Faith who was painfully opening up about her divorce and separation on the program, by reminding her that divorce is not a failure.
Another example is that of the @telegraph journalist and radio presenter @thisiheart Mother Pukka who managed to preserve her family during her divorce. She talks about it in an article in the Gracia Magazine: 'Divorce Needs To Be Rebranded' (graziadaily.co.uk)
This may remind you of Gwyneth Paltrow's divorce announcement. Who didn't smile when she announced her divorce from Chris Martin, singer of Coldplay, in these terms "conscious uncoupling"? Her interview in British Vogue will speak to those who have been there. From The Archive: Gwyneth Paltrow On Her Conscious Uncoupling Journey | British Vogu
Similarly I have observed an increase in the number of clients who say they are open to a separation process based on communication, in order to achieve a divorce while preserving the family, by putting the interests of the children but also of each parent at the center.
The divorce may bring the couple to the end but the family remains. In order to protect the family, we will have to find common grounds.
This is where Alternative Dispute resolution( ADR) or Dispute Resolution as we call it now, has a role to play.
More and more people who are considering divorce want to avoid conflict, but lawyers are still more in favour of litigation and the justice system does not help.
More often than not clients who are considering a separation are more or less on good terms with their spouse, but are afraid to take the plunge, for fear of finding themselves stuck in a long and costly process, both financially and emotionally. Clients doubt that relations between them and their spouse can remain civilized and amicable, and who can blame them when we still use terms like conflict and war when we talk about divorce.
ADR appears to be the best solution : it avoids litigation, thus reducing conflicts. More and more lawyers are trained for ADR.
Even if you and your spouse agree to divorce but not on the consequences , you have NO OBLIGATION TO GO TO COURT.
ADR is encouraged, even in the situations where the spouses find it difficult to communicate.
There are several types of ADR.
· In England you have the choice between mediation, collaborative law, Private Financial Dispute Resolution (Private FDR) and recently “one couple, one lawyer” a single lawyer for the couple.
· In France in the field of family law, you can use mediation, negotiation, collaborative law, what we call “ procedure participative” and arbitration.
1. Mediation
Let’s talk about mediation, which in both jurisdictions, remains the most common and the best known type of ADR, which allows both spouses to keep the situation under control.
Why would you let a judge, who doesn't know anything about you nor your family, make a decision about your family's future. By going through mediation, the couple will, with the help of a mediator, who is an impartial third party, reach an agreement that will suit them and be binding on them. Mediation is voluntary.
In France, the presence of the lawyer during this mediation is not yet completely accepted.
In England we speak of hybrid mediation when both lawyers are present. In practice this allows agreements to be reached more quickly because lawyers can intervene to confirm whether this or that option is possible from a legal point of view. This avoids reaching an agreement with the mediator, which will then be rejected by the lawyers, and which will require new negotiations.
Likewise in England, when we resort to mediation, and one of the parties does not wish to be in the same room as the other, we can use what we call shuttle mediation : there is mediation but the parties are not in the same room.
When a case is particularly difficult, in both jurisdictions, two mediators can be used, this is called co-mediation.
2. Collaborative law
With the collaborative process, the spouses and their lawyers undertake by a written agreement to find an agreement without resorting to a judge. Once again the spouses can maintain control of their divorce, by discussing the terms calmly with the help of their lawyers.
More often than not they disagree about the consequences of divorce, but agree that they want to find a solution that suits everyone. The negotiations are confidential, the parties agree on a meeting schedule and an agenda with the themes to be addressed. The agreement can be approved by a judge. If they do not reach an agreement, which remains very rare, then they will have to instruct other lawyers to start the legal process.
In England setting up a divorce team within the collaborative process is encouraged. The team will benefit both spouses. The team in addition to the two lawyers may include a “family consultant”, a term which encompasses either a therapist or a coach. The presence of the family consultant will make it possible to defuse very tense situations and manage emotional aspects directly, and allow lawyers to concentrate in their jobs. We will also call on third parties such as accountants and financial advisors to provide clarification on specific aspects of the discussions.
3. The other types of ADR
Arbitration in family matters is still underused in France and in my opinion remains an option for wealthy couples. In England it does seem to be used quite a bit more than it is in France, which is not difficult!
In England, you can also use Private FDR, which consists in using an expert, most often a Barrister (litigation lawyer in England) or a retired magistrate, who will have the task of analyzing the elements of the case as a judge would do and make a decision based on the facts of the case. Based on this decision, the parties will try and reach an agreement. Once again this type of ADR remains reserved for wealthier couples.
I will not dwell on the other types of ADR.
As you may have understood from reading this article, amicable divorce is within everyone's reach, you just have to want it. It is always preferable to be assisted beforehand by either a therapist or a coach, to prepare you for any type of ADR. Although they are supposed to be spaces for communication, it does not mean that there exempt from tensions or emotions. On the contrary, emotions can run high, so be prepared.
You live in the United Kingdom and you would like to know more about ADR in France or England, do not hesitate to make an appointment with me.