Separation need not be a boxing match

Not all separating couples do so acrimoniously. For some, the pain of separation can be tempered by reaching a settlement in a sensitive, reflective and amicable way.

Problems can arise when principles creep in. Principles can be good, but all too often they are given priority above all other considerations and can prevent disputes from being settled when they are crying out for a compromise. Sometimes clients see their lawyer’s suggestion of a compromise as being weak. However, usually it is because, with the benefit of experience, the lawyer is trying to protect the client from what can become an unpleasant experience and a drain on much needed financial resources.

In May 2015, it was widely reported that Mr Justice Holman told Ekaterina Fields, the estranged wife of five times divorced Richard Fields, that the divorce battles he sees are “like a boxing match”. He urged her, during the 10-day final hearing, to reach an out of court settlement with her husband. He also said “It’s awful. Don’t you think it’s awful? It’s like a boxing match. You and Mr Fields were married to each other for 10 years roughly. You have two children. It really doesn’t have to be like this. It should not have got this far”.

Mrs Fields felt cheated by the offers made to her and concluded that her only alternative was to go to court. Yet there are alternatives to an adversarial approach.

The Collaborative Process is where the couple has a series of meetings, both supported by their collaboratively trained lawyer. All four participants come together with the objective of reaching a settlement of all the issues important to the separating couple within the parameters of an agreement that sets out how the process will run. This approach is useful where the parties want a non-confrontational alternative but want or need the support of their lawyer at meetings.

Mediation involves the separating couple meeting with a neutral third party to resolve issues relating to their relationship, children or finances. The costs of the mediator are usually shared between the couple and, after a series of meetings they should be able to reach an agreed settlement. During this process, lawyers can be consulted to provide legal advice that will inform the discussions taking place.

Arbitration enables parties to a property or financial dispute on divorce or separation to buy in their own adjudicator. This can be done for the dispute as a whole or for a discrete issue. It can even be done without a hearing if the parties agree. This can prove quicker and cheaper than going to court and leaves the separating couple in some control of how their matter is dealt with (unlike the court process).