Angelina and Brad’s toxic custody battle could have been avoided by mediation

The vitriolic fight between the Hollywood superstars that has played out in the press and the courts over the summer could easily have been side-stepped. All they had to do was stick to their original plan to settle their issues by mediation. The same is true of most issues relating to children and financial disputes and in this blog we look at the alternatives to court proceedings.

You don't have to be a Hollywood super-couple to benefit from Alternative Dispute Resolution (ADR)

Brad Pitt and Angelina Jolie's divorce hit the headlines again last month after the custody battle over their six children turned toxic. Tensions have risen due to Jolie wanting to take the children to Europe while she films Maleficent 2. With Pitt working on movies in Hollywood, this means he will be unable to see the children regularly. Cue a public battle fought out in both the courts and the press. There are claims that Jolie risks losing custody altogether and allegations that Pitt hasn't been providing financial support since their break up.

It is sad things have got to this stage as last year the couple agreed to put aside what Pitt called their “vitriolic hatred" and work together to settle their divorce. This has now broken down and one can only imagine the damage this public fight will do to their children, not to mention their own peace of mind.

They would have been much better off trying to mediate their difference as originally planned. In fact, you don't have to be a Hollywood super-couple to benefit from Alternative Dispute Resolution (ADR) as one of my clients found out recently (more of which later).

Let's look at what ADR options are available to couples in the UK.

Mediation

Before any application is made to court in a child related issue or financial dispute, both parties are required to attend a Mediation Information and Assessment Meeting (MIAM). The purpose of this is to see if you can avoid court and resolve the issue in mediation. After this initial meeting, mediation is voluntary.

If you choose to go to mediation, a mediator cannot impose a decision on you. Their role is to encourage you to speak openly and explore ways of reaching a settlement you both agree to. This can be especially valuable in children disputes as it can diffuse tension and avoid the adversarial atmosphere of court hearings. Unlike court proceedings, it is also confidential. It can help resolve issues more quickly and can be significantly cheaper than going to court. Mediation can be used to resolve any family dispute and can take place even if proceedings have started.

Collaboration

Unlike mediation, collaboration requires you and your partner to commit to reaching a settlement without going to court.

The way it works is that your solicitor and your partner's solicitor work with you and your partner in a four-way meeting to discuss the issues and try to reach a settlement. If discussions break down without a settlement being reached, neither solicitor can continue to act and you and your partner will need to appoint new solicitors.

The advantages of collaboration are that you and your partner set the agenda and everything is discussed face-to-face rather than through solicitors'. Also it is almost always quicker and cheaper than going to court, and is totally confidential.

Arbitration

Under arbitration, the parties agree to appoint a suitably qualified third party to determine their dispute (often a senior barrister with experience of family law). Arbitration is final and binding and is an alternative to court proceedings.

Unlike court proceedings, the parties can select the arbitrator and the venue for the arbitration. Also, arbitration takes place in private so cannot be reported in the press. Hearings are likely to be speedier than those in court as the arbitrator will read all the papers before the hearing. Most cases are heard within a day. Arbitrations are almost invariably quicker and cheaper than court proceedings.

A private financial dispute resolution hearing

If a financial application is issued during divorce proceedings, the second court appointment is the Financial Dispute Resolution (FDR). This is a without prejudice hearing during which the judge will tell the parties his or her views on settlement. The judge will then encourage the parties to try and negotiate a settlement.

Invariably the court lists numerous matters at the same time and so the time spent with the judge is limited due to the number of cases the judge has to deal with. The wait to see the judge can be lengthy and does nothing to help a client with the emotional stress of the hearing. This is not helped by the fact that the court waiting area is often packed and there is little privacy, with only a few interview rooms available.

Recently I dealt with an FDR by agreeing with the other party to instruct a judge on a private basis for a whole day, with each party paying 50% of his fee. The FDR was conducted in his private chambers and each party had their own room. The atmosphere was calm and relaxing. The judge was available from the moment we arrived at 9am until we finally settled late in the day. There were no time restraints. With tensions running high in an emotive area of law, the ability to have a private FDR is certainly conducive to resolving matters amicably. It enables the parties to move on with their lives and minimise the acrimony of lengthy contested financial proceedings.

If you would like to discuss an issue relating to divorce or alternative dispute resolution, please contact me now at [email protected] or on 020 7616 5322.