Taking the heat out of negotiations

Family | 28th August 2018

Not so many weeks ago we all had to work in record high temperatures. For one of my divorcing clients a Financial Dispute Resolution (FDR) was listed as the heatwave took hold. It was a hotly contested matter and the parties entered the court arena poles apart. The court had no air-con, the windows could only be opened a fraction, there was no breeze, no fans, all meeting rooms were occupied (even though we got to court as the building opened). The result? Hushed, privileged discussions took place in an unbearably hot public waiting area.

Whilst the outcome of the judicial indication and resulting negotiations was pleasing, in as much as a Final Hearing was avoided and the property equity division was agreed 75:25 in my client’s favour, my client had this to say:

“I do believe, however, that the Court accommodation resources for attendees is nothing short of disgraceful. The negotiations with XXXX’s advisors would, in my view, have been concluded much earlier in the day if we had been given the use of a private room. Sitting in a waiting room with other people, resting paperwork on our knees, and having at times whispered discussions with advisors, is both unjust and wrong. Court premises are the last place for settlement discussions to occur.”

This was a case where the parties had tried one method of alternative dispute resolution (ADR), namely mediation with a highly experienced solicitor mediator. My client’s spouse pulled out of mediation with no warning and issued proceedings without suggesting the alternative of a private FDR or Arbitration (both being an altogether much better way to resolve disputes that need the equivalent of a judicial steer, if not determination) which avoids the hideous experience (for clients and their lawyers) of the court arena.

Whilst I remain content with the end result achieved for my client in this case, I am far from content with the resulting method by which resolution was reached; I will continue, with more conviction than ever, to persuade others to the advantages of the alternatives to the court process, where it is appropriate for the particular client and issues at stake, to do so.

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Vanessa McMurtrie

Partner, Family

Vanessa trained and then qualified as a solicitor in 1991 with Hart Brown working in the Cobham office, family department for a decade. She then worke...