Many people who have separated will divide their property without going to court.
There are several ways people can reach their own agreement. Sometimes the partners will be able to reach an agreement on their own or with the help of their lawyers.
But sometimes the partners will not be able to agree. In those instances, there are several dispute resolution processes to help the partners resolve their differences.
We think that about 10-15% of people who see a lawyer will take their disputes to a private mediation. An independent mediator, helps the partners to negotiate a settlement. Mediation is informal and flexible. The mediator facilitates the discussion and helps the partners, often with their lawyers, to negotiate.
Sometimes mediation is not appropriate. People must be ready to deal with their issues. They must have rational and reasonable discussions and be willing to agree on an outcome. This can be challenging because relationship break ups are often stressful and emotional.
Another difficulty is that the mediators must act impartially. They do not advise or advocate for either partner. Their primary aim is to help the partners reach a settlement. If a partner has no lawyer, or does not have enough information, a settlement reached at mediation might be unfair.
Family Dispute Resolution
Family dispute resolution (FDR) is a mediation service for people who have separated and need to work out how they will share the care of children.
People must go through a FDR mediation before they can take their case to court. The Government subsidises the process and fees are capped.
FDR is not for disputes about property, but people can talk about property matters if it will help them decide how they will care for their children.
Collaborative law is a way that lawyers help their clients to resolve disputes.
The process requires the people in the dispute to commit to have face-to-face meetings and to share information. They must have reasonable discussions and want to reach an outcome which is good for both partners. Lawyers play an active role. Their job is not to help their client win. Instead, they help their client problem-solve with the other partner. Sometimes other experts can help, like child experts, financial professionals and communication experts.
Collaborative law can be effective. Research suggests that people who go through the process reach settlements they are happy with.
The main barrier with collaborative law is that it can be expensive. It can require lots of work from the lawyers and other experts.
Arbitration is a formal process where the partners appoint an independent arbitrator to decide what should happen. The decision is binding and enforceable as if it was a court judgment.
Arbitration is usually quicker than going to court. It is also confidential. An arbitrator can help the partners identify the main issues in their disputes and tell them what information they must disclose.
Arbitration can be expensive. An arbitrator will charge a fee which will be on top of each partner’s legal fees.
Partners will often try to settle their property matters directly through negotiation discussions. Although no independent person facilitates the discussions, the partners will usually require lawyers if they are to enter enforceable settlement agreements.
Negotiations can be a direct and quick way to resolve matters, which may make them cheap. But an independent facilitator can be very useful and sometimes more efficient.
Online Dispute Resolution
More people are trying to resolve disputes through online dispute resolution services. Online services can sometimes offer quick and cheap solutions.
But online dispute resolution services might not be appropriate where complicated legal issues are involved. Or they might not work if the partners are not committed to an open and cooperative approach.
Is there a better process?
There might be better processes to help people resolve disputes themselves.
One option is for the existing FDR mediation process to apply to property disputes. If the Government subsidised FDR for property matters, it could be a cheap and efficient way for people to resolve disputes.
But FDR mediations about property would need good processes for people to disclose all relevant information, know their legal rights and reach fair and binding agreements. The FDR mediators would also need legal expertise in property matters.
Alternatively, there could be a dispute resolution process specifically for people who cannot agree how to divide their property. It could have specially designed procedures and be led by people with mediation skills and legal expertise in property matters.