ADR for Divorce – Coronavirus and beyond
If there is one thing we can be certain of right now, it’s that there is no certainty. Are you a planner? If so, you’ll be feeling particularly uneasy right now. Did you attend Get Divorce Ready Live in January? We talked about the importance of a divorce plan. Divorce planning is important. Whatever your position, it’s likely you’ll be wondering what on earth will happen to your divorce now. In ADR for Divorce – Coronavirus and beyond, we take a look at alternatives to using the court to get your divorce done.
Coronavirus has thrown us all a curved-ball. As we adjust to ‘lockdown’, it’s often hard to remember what day it is (or perhaps that’s just me)? As the week’s go on, however, we must create a ‘new normal’ for ourselves. Last week, I wrote about what to do if your court hearing has been deferred. I’ve also written about surviving your divorce during Coronavirus and Co-parenting During Coronavirus. Do check out all of these blogs as they will support you during this time.
This week in ADR for Divorce – Coronavirus and beyond I take some of the topics written about last week and explore them further, following a training (online of course), that I was able to do last week run by thoughtleaders4.com/hnw-divorce. What is clear from the training is, as the courts get used to using Skype for business, and, as more people turn to Alternative Dispute Resolution methods to avoid delays and bring certainty and clarity to their circumstances, it is unlikely there will be a backward step when the lockdown is over. You see, ADR isn’t new and it is here to stay. The good news is, you don’t have to put your divorce on hold. You do have choice (if you have a budget). If your divorce isn’t high conflict, and you and your soon to be ex-husband can work together.
Hybrid mediation may be for you if the thought of being on your own in a room with your soon-to-be-ex-husband fills you with dread. I’m not talking about just because you can’t stand the sight of each other, but because there’s a power imbalance, a history of financial or emotional abuse or you lack confidence in your ability to advocate for yourself. Hybrid mediation takes all that is powerful about mediation – you retain control, you decide the pace and the agenda and adds in the use of your solicitors so you are not alone in the process. The use of solicitors means you can be guided to stay on track and create flexible outcomes that work.
The Certainty Project
If you are interested in the benefits of Arbitration, The Certainty Project could be for you. The Certainty Project is designed to give you greater control in the Arbitration process. The project will start with the completing of the Arbitration application. You are free to choose your own arbitration or have one chosen for you. Your lawyers will help you choose and recommend an arbitrator if your case requires special expertise.
Your Solicitor will prepare your Form E for you and support you with the disclosure process generally. They will agree an Asset Schedule. The Asset Schedule is a document outlining all the assets and liabilities that each of you has so it’s clear to see where you both stand financially. At this stage, there won’t be any without prejudice offers. You will be supported to mediate so you retain control of the process – this is your divorce. You won’t need to do a MIAM.
Your mediator reports to your solicitors about the progress of your case. The lawyers will then advise you and report to the Arbitrators if there are any issues not resolved in mediation. This means you have certainty. You have certainty over the choice of the professionals you choose – lawyers, mediators, arbitrator, and certainty over the time frame. It can be swift. So long as one of you is legally represented, the Certainty Project is an option for you.
The Divorce Surgery
If you and your soon-to-be-ex-husband work well together, The Divorce Surgery may be of interest to you. The premise of The Divorce Surgery is one couple, one lawyer. Unusual right? Yes! But in ADR for Divorce – Coronavirus and beyond we are looking at the future. The Divorce Surgery can work. Here’s how.
As a couple, you agree to find one impartial Barrister to give you both advice. This can help both of you manage your expectations about settlement. It’s not going to be for you if there is a power imbalance and there are disclosure issues. So it’s not suitable for cases of domestic abuse or any complex legal or jurisdictional issues. However, if you and your soon-to-be-ex-husband both understand and accept the family balance sheet, the Divorce Surgery approach can assist you to reach an early settlement.
How The Divorce Surgery works
You will meet virtually for an initial screening session to ensure that your case is suitable for the divorce surgery process.
The second session is a disclosure session
The third session is an advice session which may last 2-3 hours. You will be given an indication by the Barrister regarding their thoughts on how the matter is likely to conclude. This is not a negotiation because the Barrister is advising both of you. You will receive a written advice of some 15-20 pages in length so it will be comprehensive. You will have the ability to ask clarificatory questions.
Your lawyers are not involved because this is not a negotiation tool. It is seen as more akin to a legal conference where legal professionals give explanations of the law in the light of the client’s circumstances. Once the advice has been given, you are free to negotiate between yourselves using the advice as a guide and seek your own advice.
The Divorce Surgery starts at £4750+vat and may increase if the finances are complex but a detailed costs quote will be given prior to starting the process.
The benefits of Private FDRs
If your Financial Dispute Resolution Hearing or FDR has been adjourned until later this year, you may be feeling frustrated. Another ADR for Divorce – Coronavirus and beyond is the private FDR. Private FDR’s aren’t new but they will be coming into their own in the coming months. Private FDR’s are suitable for parties who wish to settle but are struggling to get there. It could be an issue or two that’s outstanding such as what should happen to the FMH. What is the relevance of pre-marital property or post-separation accrual. They aren’t suitable for cases where there is significant non-disclosure.
A private FDR will be run by a senior Barrister or retired Judge of your choosing. The time frame and location will be of your choosing too. Currently, all private FDR’s are being held virtually. Sharing recordings of these hearings is a criminal offence.
The judge reads your papers in advance and expresses their views about likely outcomes. Yours is the only case on the day so you have plenty of time to negotiate. private FDR’s have a good success rate – as high as 80% so consider it and speak with your lawyer about the possibility. You will save time and receive clarity whilst having some control over the process.
Divorce Coaching to support ADR
Divorce coaching isn’t an alternate dispute resolution tool but it can support it. As a mediator, I can attest to the power of developing the right mindset to promote good outcomes for clients. Divorce is scary, overwhelming and confusing. It doesn’t have to be that way. Sometimes a calm conversation and a re-frame of a situation makes a bad day into a good day. Divorce hasn’t stopped because of Coronavirus. If anything, it’s going to increase. Supporting yourself to make good decisions even in times of uncertainty is important. So, if I can help you get your ducks in a row, reach out. In this period of lockdown, there isn’t a better time to start planning for life after Coronavirus and beyond.
Emma Heptonstall, the Divorce Alchemist is author of the Amazon best selling book How to be a Lady Who Leaves, the Ultimate Guide to Getting Divorce Ready. A former lawyer, Emma is a family mediator and founder of Get Divorce Ready the online self-study and group programmes. Emma has been featured on BBC Radio, The Telegraph, the iPaper and in Marie Claire Magazine. To find out more visit www.emmaheptonstall.com