June 21, 2024 • 41 mins
In this episode, Tamsin discusses with Karin Walker the new Family Procedure Rules, from 29th April 2024, being implemented to keep more couples out of court and using the wide range of non-court dispute resolution options to agree their financial settlement. Karin is not only a family solicitor but also a mediator, collaborative lawyer and arbitrator.
Karin Walker
Karin Walker is a family lawyer, based in Woking, Surrey. She is a solicitor, mediator, collaborative practitioner, neutral evaluator, and arbitrator.
Having previously been a partner in a large Surrey based firm, she set up the award-winning firm, KGW Family Law, in January 2012. All of the firm’s solicitors are trained in mediation and both Karin and her colleague Simon Clark are arbitrators. The ethos of the firm is to encourage clients to consider out of court dispute resolution options, thereby minimising both acrimony and cost.
Karin regularly speaks on all issues relating to family law locally, nationally and, on occasion, internationally. She is also a trainer of family law professionals.
Karin is a co-author (with Dr Supriya McKenna) of “Narcissism and Family Law – A Practitioner’s Guide” and “Divorcing a Narcissist – The lure, the loss and the law”, both of which are published by Bath Publishing.
Tamsin Caine
Tamsin is a Chartered Financial Planner with over 20 years experience. She works with couples and individuals who are at the end of a relationship and want agree how to divide their assets FAIRLY without a fight.
You can contact Tamsin at tamsin@smartdivorce.co.uk or arrange a free initial meeting using https://bit.ly/SmDiv15min. She is also part of the team running Facebook group Separation, Divorce and Dissolution UK
Tamsin Caine MSc., FPFS
Chartered Financial Planner
Smart Divorce Ltd
https://smartdivorce.co.uk
P.S. I am the co-author of “My Divorce Handbook – It’s What You Do Next That Counts”, written by divorce specialists and lawyers writing about their area of expertise to help walk you through the divorce process. You can buy it here https://yourdivorcehandbook.co.uk/buy-the-book/
To learn more about our podcast sponsor Ampla Finance – access their product guide here: https://bit.ly/3Ieqmuc
Or complete enquiry form https://bit.ly/3W4J7pz and one of the team will be in touch.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Tamsin Caine (00:06):
Hello and welcome to the Smart Divorce Podcast.
This is series nine and in thisseries we're going to explore
what makes up the working weekof various different
professionals who work in thedivorce world.
You'll start to understand whatthey do, both during the time
that you see them, how theyprepare for meetings, and what
(00:31):
work goes into the work of adivorce professional outside of
the time that you spend withthem.
I'm really looking forward tosome amazing clients in this
series.
We talked to a barrister,family solicitor, financial
planner, divorce coach andreally hoping that you're going
to enjoy it and get a lot fromit as well.
(00:57):
Hello and welcome to the SmartDivorce Podcast.
Very special episode today.
I'm delighted to welcome KarinWalker to the podcast.
Karin is an expert in non-courtdispute resolution and also on
working with clients who areeither divorcing a narcissist or
a narcissist themselves.
(01:18):
She is so good at this stuffshe's even got a best-selling
book in the area area.
I'm going to let her introduceherself properly in a second.
We're going to talk today aboutsome changes in the rules
around going to court to arrangeyour divorce.
So first of all, karen, welcome.
Thank you for joining me.
Karin Walker (01:37):
Would you introduce yourself properly,
rather than the garbled versionthat I've just done
oh, thank you first of all, somuch for inviting me to speak on
this topic.
So I'm a family lawyer,mediator, collaborative
practitioner and arbitrator, andI'm based at my firm KGW Family
(01:59):
Law in Woking.
I was chair of resolutionsDispute Resolution Committee
from 2014 to 2017.
And out of court disputeresolution has been something
very close to my heart for avery long time.
I think that it's incumbent onfamily law practitioners to
encourage people to settle theirdisputes out of court where
(02:21):
possible, and these new rulechanges are very much a step in
that direction.
So very, very welcomed, I think.
Tamsin Caine (02:29):
Excellent.
So the changes I think Iunderstand came in towards the
end of April.
Can you explain to us what theyare and how we expect them to
work?
Karin Walker (02:45):
Sure.
So the Family ProcedureAmendment no 2 rules for 2023
were effective for Monday, the29th of April of this year, and
the rules really are trying tofocus on the opportunities for
resolution away from the court,to strengthen the court's duty
(03:06):
to encourage and facilitatenon-court-based dispute
resolution, really giving morestrength and teeth to part three
of the family procedure rules,which has been in place for a
long time.
The judiciary have always hadthe opportunity to use part
three to refer cases out of thecourt system or to encourage
(03:29):
people to look at differentoptions, but actually it's been
used very infrequently to date,which in some ways, was
disappointing and in other ways,I think once people had engaged
in the court process, there wassome expectation that that's
where they would continue.
But I think the court system isso overstretched now.
(03:51):
There are so many applicationsin court and it's a system
really that is quite broken now.
It can't cope with that sort ofvolume and also it can't and
shouldn't cope with people whojust shouldn't be in that arena,
that who can resolve theirissues in a much more
(04:13):
cost-efficient, time efficientand family focused way.
Um, and people really should beaddressing that and seeing the
court system as a last resort ifthere really is no alternative,
rather than court being thefirst port of call and then
looking at something different.
(04:33):
So that really is what therules were intended to achieve.
And then, in terms of whatprofessionals need to know, the
definition of non-court disputeresolution has been widened.
So that's at Procedure Rule2.31b, and it's not limited to
(04:57):
mediation and arbitration butalso evaluation by a third party
.
So private financial disputeresolution and also
collaborative practice.
So it's really widening itright out to say, well, you
can't just now say we're notsuitable for mediation.
If that's not the right one,then look at the other range of
(05:20):
out-of-court options and seewhich one might be suitable.
Out-of-court options and seewhich one might be suitable.
The number of mediation,information and assessment
meeting exemptions has beenreduced.
So unless you really do fallinto one of the quite narrow
exemptions which are reallyaround the domestic violence
(05:41):
side, then it's no longer just atick box exercise.
You've really got to thinkabout is there something which
you could consider?
And also there are going to becost consequences with all of
this, so that if you don't lookat options that might suit a
particular couple and if youjust blanket say oh, it's not
(06:03):
suitable and leave it at that,that may have consequences.
Further down the line there's anew court form, an FM5, which
seeks views on non-court disputeresolution.
(06:23):
So if the court requires you todo so, the parties may have to
file and serve this new formwhich sets out what steps
they've taken and what they'veconsidered, so that the court
can have regard for that.
And then you've got theincreased use of stays and
adjournments which I think we'realready seeing in the space of
(06:44):
probably five, six weeks sincethese rules came into place.
So court will of its ownvolition adjourn a court process
.
So it's no longer necessary forthe parties to agree to that.
That adjournment can be imposed.
And so again it's 3.41a, butthe rule there is to stop the
(07:08):
court process and activelyencourage the parties to go and
do something else.
And I've already had two orthree referrals via that route
where people are in court andthey're being sent out.
And then I think the finalpoint which perhaps
practitioners really need to situp and take notice over, is at
(07:29):
procedural 28.3, you've now gotthe cost consequences.
So when assessing costs thecourt must have regard to a
failure by a party without goodreason to either attend a Maya
or attend some form of non-courtdispute-based resolution, and
(07:51):
that's a real step up to saythat if you're not doing this,
this could translate into costsand I think we might see more
and more cost orders of thatnature where people have been
belligerent and just refused toconsider this.
So I think I really welcome thechanges.
I think they're a hugelypositive step.
(08:13):
I personally think makingout-of-court dispute resolution
absolutely compulsory is a bitof a step too far, because I
think you have to consider whatis right for the couple, and
there is a whole range, and soit's.
I think it's not beyond the witof most family practitioners to
(08:33):
find something that would besuitable, or at least to try and
see if it works.
I think that it's important toexplain to clients that the
court isn't the provider ofjustice and retribution.
It's a very clunky,delay-ridden, inadequate last
(08:54):
resort, which will become a lotbetter if it's not full of
people that don't need to bethere.
So there's a win-win.
If it's allowed to workproperly, it's an excellent
system.
It's just it's too full ofpeople that don't need its
services.
So if these new rules can befollowed, all those people that
don't need to be there can besomewhere else, then the system,
(09:17):
which we're not overstretched,is very efficient, can work as
it was intended to do so betterall around absolutely, totally
agree.
Tamsin Caine (09:26):
I have a mound of questions from everything you've
just said, so I'm going to takeyou right back to the beginning
and ask if you would verykindly explain about the going
to court thing, because I havelots of clients who are very
(09:47):
confused between the differencebetween sending your financial
consent order to the court to besealed and going through the
court process to to have yourdivorce.
Could you possibly start verybasically, just explain that bit
to us?
Karin Walker (10:05):
yeah, of course.
So, um, I think, going rightback to basics and the start, um
, the divorce process is twosets of proceedings, or three if
you have child related issuesthat run on parallel lines.
So the divorce itself now, um,no fault divorce, all done
online via the governmentwebsite just deals with bringing
(10:29):
your marriage to an end.
So it's pure process.
You don't really need a lawyeranymore to fill out all the
forms.
You pay your court feecurrently £593, and that's it.
Then you've got the financialside.
So the you have the standardcourt form for disclosure, which
is a form E, and most peoplewill use that, whether they're
(10:52):
dealing with voluntarydisclosure or court-based
disclosure.
If we look at the voluntaryside first, so let's say you
have no proceedings issued atall, but you know you need to
sort things out.
So you say to the other sidelet's both do a form E, because
the job that you're doing iswhat is there.
And then how do we divide it?
It's as straightforward as that.
(11:14):
So to find out what there is,use a standard form.
Everybody knows what it is.
It makes sure that nothing ismissed out.
Exchange those, hopefully viasome method of dispute
resolution, which we'll talkabout in a minute you reach an
outcome that everybody can livewith.
I won't say be happy with,necessary, but everybody can
(11:34):
live with.
But that then needs to beratified by the court because in
order for it to be binding andenforceable and bring claims to
an end so if you're looking atterminating an entitlement to
maintenance, you need to havethat brought to an end by a
court order.
And so once you've got to thepoint of having an agreement,
(11:57):
you draft an order by consentand that's then submitted to the
court with a form D81, whichsets out in a very broad basis
what the financial circumstancesof the couple are.
The purpose of that form is toshow pre-agreement these are the
financial resources of thecouple.
Then the agreement isimplemented and then let's look
(12:20):
at where they will stand afterimplementation.
So that's the purpose of FormD81.
And the consent order goes intothe judge.
The judge looks at the D81 tomake sure that everything is
fair, will then ratify the ordercourt fee of £58 at the moment
and everything comes back done.
So that's the consensual, noneed for any court application
(12:43):
way of dealing with things Ifsomebody won't provide a form E
or won't provide any disclosureor just won't deal with anything
at all is ignoring everything.
Then, as an absolute last resort, you might issue your form A,
so that's your standard courtapplication for financial remedy
(13:05):
proceedings, and then you'reinto the court timetable.
So you will have a date foryour first appointment.
You will have a date 35 daysprior to that for exchange of
formacy on a formal court-basedbasis, your opportunity to ask
questions which would be dealtwith at your first appointment.
Then you'll have your FDRappointment, so financial
(13:27):
distribution appointment with ajudge, and if you really can't
sort things out there, then afinal hearing.
But going back to the use ofstays pursuant to Rule 3.4, at
any point in that process thecourt now, without the agreement
of the parties, can take peopleoff the tramline of the court
(13:49):
system and move them intosomething else.
One of the things I wouldhopefully like to demonstrate in
this podcast is that you don'thave to see an application to
court as the only alternative ifsomebody just won't play ball.
People don't play ball for allkinds of reasons, sometimes
(14:10):
emotional, sometimes awkwardness, sometimes a mixture of the two
.
But there are different ways ofbreaking that impasse and I
think, sadly, all too frequentlyyou hit an impasse and someone
will just send an applicationinto the court and say to their
client oh, we're not gettinganywhere, so we have to do this,
(14:30):
and actually that's not right.
But if it happens it's not theend of the world, because you
can still come off thattrajectory and move to something
different that perhaps couldhave been considered at an
earlier stage and wasn't.
Does that explain those two?
Tamsin Caine (14:49):
absolutely, that's absolutely perfect.
My next question is that is onethat I know I know you're going
to be able to explain very wellto me can you go through?
So we've talked about out ofcourt dispute resolution and
we've said there are lots ofoptions, and I know that they're
(15:10):
quite complex and we've spokento people on the podcast before.
But just really briefly, couldyou run through the options that
we, that clients, might want tolook at or might be able to
look at, and so that they're notfiling and going through this
long-winded court process?
Karin Walker (15:29):
Sure.
So I think the one thateverybody knows the best is
mediation, because that's whatthe MIAM Mediation Information
and Assessment meeting was firstall about, and that involves
the couple sitting down, eitherremotely or in person, with a
trained facilitator.
Their role is to help themreach their agreement.
(15:50):
They can't give them advice,but they can provide lots of
information and they'll workwith the couple to create an
outcome that they can both livewith, and so that's, I think,
the most traditional form.
Historically, it's beensuggested that mediation is
unsuitable in all kinds of caseswhere the couple find it hard
(16:14):
to sit down together.
And whilst one can understandthat and I'm not going to
underestimate how difficultmediation can be it's a big deal
to sit down with someone and dothat, but I think it's
important to think about whatthe alternatives are.
It's quite a big deal to gointo a court building and sit in
(16:36):
a very inadequate waiting areaand be in the same place.
So I think classic mediation,which is the best known, is
sometimes shied away frombecause it's perceived as being
a need to sit down together andwork something out.
I was quite interested to see.
I'm going to hold back my handto one of my guilty pleasures.
(17:00):
I watch Coronation Streetavidly, and I have done for many
years, but I'm pleased to seethat there's a dispute between
the guy who owns the funeralparlor and his sister and that's
going to be mediated.
So I'll be very interested tosee how they deal with that.
So mediation is the mostobvious one.
There are different forms ofmediation, so hybrid mediation
(17:21):
is an opportunity for themediator to hold confidences.
That's the only differencebetween classic and hybrid
mediation.
But hybrid mediators arespecifically trained to deal
with high conflict situation.
So I feel quite strongly thatif you're thinking about going
to court using the hybrid modelso you've got a highly trained
(17:45):
mediator you're probably goingto keep the couple in separate
breakout rooms, so that's goingto take away all that need to be
face-to-face.
You might want to bring thelawyers with them into the
process so that they feelsupported and advised, which can
make the mediation itself muchmore focused and fast-moving.
And so in many ways it mirrorsthe court system, but rather
(18:09):
than having a judge who willmake a decision which nobody
might like, you've got a neutralfacilitator, instructed by both
, who's starting verynon-positional, and I want this
and you want that, because tomove away from that always feels
(18:29):
like you're giving in.
Come along with an idea of yourdirection of travel, what's
important to you, what are youprepared to compromise over.
Don't be fixed to anythingspecific and let that outcome
grow through the benefit of theneutral facilitator providing
information and a steer anddiscussing steer and discussing
(18:51):
options and the lawyersproviding advice.
So I think that hybrid model isvery, very useful For people
who don't want to do that.
I think neutral evaluation is avery underused out-of-court tool
and is very inexpensive, can bebrought into any kind of
process, is very inexpensive,can be brought into any kind of
(19:11):
process mediation, hybridmediation, collaborative
practice but you're going tobring in a third party who would
probably be an arbitrator or aprivate FDR judge, somebody with
that kind of level ofqualification, who is going to
look at the issues and givetheir view as to what a judge
might do at the issues.
(19:32):
And give their view as to whata judge might do.
Nobody has to be bound by it.
We work in a very, verydiscretionary jurisdiction, so
there's no right or wrong answer.
But in cases where there is areal impasse over points which
can readily be argued one way oranother examples being
pre-acquired pension resources.
So pension that's built up along time before anybody laid
(19:53):
eyes on anybody else.
Are they going to be ignored orare they going to be taken into
account?
That's a really obvious examplewhen a neutral valuation could
just sort that out.
And I think if it's used earlyon, before everybody gets
entrenched and has spent loadsof money, it can break that
(20:14):
impasse at a very early stage.
Inherited wealth is anotherobvious example Trust assets, so
all the things where they canso easily be argued either way
and before you've got into therealms of everybody taking up
positions which they're nevergoing to move away from unless
somebody forces them to bringsomebody in at an early stage to
(20:37):
talk about it.
You're probably looking at 1500pounds to 3000 pounds in cost
between the couple, depending onwho you use, um, but money
really, really well spent.
It's probably the cost of aconference with, with good
counsel, um, but, but together,um, and and telling the couple
(21:00):
that you've got some argumentsfor this, you've got some
arguments for that, but.
But this is what I think islikely to happen.
The private fdr has become verymuch the trendy form of
out-of-court dispute resolution.
I think that's slightly down tolawyers, because it's what we
know and we're used to, so itjust mirrors the court system.
For me, I think that theprivate FDR works very, very
(21:25):
well for some people, but theprivate FDR judge is going to
give an indication, so they'renot going to work towards an
outcome.
Fdr judge is going to give anindication, so they're not going
to work towards an outcome.
They're just going to give aview and you may or may not
accept that.
Personally, I slightly preferhybrid mediation over the
private FDR, because it's not sopositional and because the
mediator can really roll theirsleeves up and try and help and
(21:47):
look at all sorts of differentalternatives, not just one
indication, but it depends onthe couple.
And then, finally, you've gotarbitration.
If you need a decision, peoplethought initially that it was
expensive.
I think in the very early daysof arbitration, the sort of
2012,.
It was billed as being for therich and famous because it was
(22:09):
private.
It's actually not.
It works very, very well forwhat I'd call the 99%ers, the
normal people who are in theobvious usual income bracket,
and although you have to pay thearbitrator, that cost pales
(22:38):
into insignificance for thereduction in overall legal costs
of a full blown out courtsituation, not least because it
can be resolved in about two tothree months as opposed to 18
months.
So, and you're going to havesomeone who has read the papers,
and also arbitrators wantrepeat work, so they're going to
be very keen to be seen asdiligent and fair.
They're not likely to bepro-wife, pro-husband, pro
either one side or the other,and they don't want the
(23:02):
solicitors who've instructedthem to go away thinking, well,
they didn't read all of that orthey swayed towards.
You know they want to be asfair and diligent as possible.
So not that I'm saying judgesaren't, but arbitrators just
have more time.
You have your hearing on a datethat you want, in a nice
environment with coffee andsandwiches and proper facilities
.
So you know what's not to likereally.
(23:22):
Those are the principal formsof out of court.
And then, of course, thecollaborative practice, which
has slightly fallen away, Ithink, because of this idea that
if it doesn't work you have toinstruct some new solicitors
puts people off, but you canarbitrate without instructing
new solicitors.
And then you've got thecertainty project, which I was
(23:45):
very involved in, which is thefusion of mediation and
arbitration.
So mediate first.
If that doesn't work, yourarbitrator, who's appointed at
the outset, will make a decisionfor you.
Tamsin Caine (23:56):
And then there's assent, which is the fusion of
the private FDR, and arbitration, which is a very new way of way
of dealing with things, whichum zoe, um bloom put together in
the first instance, um, but umis out there and hopefully will
be well received, um, so that'sa quick canter through a lot to
(24:24):
take in, but um, but thank youfor that because it was very
clear and covered kind of a lotof different options that are
available to people and I think,aside from thinking about the
the monetary cost of going tocourt against some of these
other options, you know you'vegot to also think of the
(24:47):
emotional cost of the delays ofthe court process.
As you said, you know you couldbe looking at 18 months,
whereas actually in if you useone of these non-court options,
you could be done and dusted ina matter of months and and that
as an emotional cost can beabsolutely huge on couples,
can't it?
Karin Walker (25:07):
The expectation is that out-of-court dispute
resolution will slot into the20-week period between the issue
of an accusation andpronouncement of conditional
order, so it should package upreally neatly.
I think also, when you talk,tamsin, about emotional costs,
it's really important not toforget the impact on the family,
(25:27):
particularly the children, and,if they know, are engaged in
court proceedings for many, many, many months.
I think it's important to sayto couples what memories do they
want their children to havewith their childhood?
Um, do they want it to be okay,mom and dad separated, but they
work together positively tosort this out and it was done
(25:52):
quite quickly and then we allgot on with our lives?
Or do they want to have thememory of of, you know, constant
to-ing and fro-ing ofcorrespondence and and a number
of court hearings and everybodygetting very stressed ahead of
them and it hanging over thefamily like a dark cloud for
more than a year, which is aninevitability, and I think the
(26:14):
impact upon children is very,very real and sometimes
something that their parentsforget about.
So I think that's quiteimportant.
Um, you wanted me to look turnsin it of what to do if one of
the couple won't play ball withthese out of court.
Tamsin Caine (26:34):
I do because this is common, this is, you know,
this is the.
This is the situation I I'mdealing with every day and I'm
sure you're dealing with everyday.
You know where one person ishappy to give disclosure, or one
person is happy to considermediation or one of the other
options that's out there, andthe other party's absolutely
(26:56):
determined that either they'regoing to do nothing, as you
mentioned before, or they wanttheir day in court and they want
a judge to decide, and that'sthe be all and end all, and I
just think that leaves the otherperson who's happy to engage
and try and work things throughin a really almost impossible
(27:18):
situation situation and I thinkthe new rules give opportunities
to encourage the person whowants their day in court to look
at something different.
Karin Walker (27:31):
If you've got somebody who is, let's say,
narcissistic on the other side,appealing to their sense of
specialness and saying you know,these are very innovative new
ways of dealing with things.
This is what every educated,sensible person would do, like
you.
So you know, why don't youengage in something that can
(27:55):
appeal to that sense ofspecialness that they have?
So it's not out of the questionto nudge them in that direction
.
But there are people,unfortunately, who just will do
nothing and be as awkward anddifficult as possible.
But I think that the increaseduse of stay is from the court so
(28:18):
that the opportunity for thejudiciary to say no enough,
we're not going down this road,you are going to try something
else.
I think also from the costperspective and the new FM5 form
, if you want to mediate or youwant to arbitrate I know this
(28:39):
can sometimes be a hard sell tothe client who's keen to do it.
But to say to them offer to paythe other person's costs, offer
to pay for the arbitrator infull, offer to pay for the
mediator in full, because ifthey still say no, what on earth
is the reason for not doing?
And if you then go into court,you have the obligation now to
(29:04):
provide correspondence dealingwith out-of-court options and
you have to respond to aninvitation to engage in
non-court dispute resolution ina considered and timely fashion.
So if you offer first of all,let's mediate, they come back
and say no.
They might say I can't affordit or I'm not going to pay for
the courts free, I'm not goingto pay for an arbitrator.
(29:26):
You go back and say okay, we'llpay.
So now what's the problem?
Although it feels a bit unfair,why should one person be paying
for that?
But actually, point one, life'snot fair.
And point two, the costs thatyou're going to incur are going
(29:47):
to far outweigh paying for thearbitrator in the fullness of
time if you go down the courtroute.
So why not put the other personunder pressure and also have
the possibility of getting acost order because you've been
the one that's been supersensible?
Um, because you're taking awayall the reasons to say no.
If you're dealing with somebodydifficult, always let them pick
(30:07):
the arbitrator.
All arbitrators are good andmediators I think they're all
properly trained, professionalpeople.
And if your solicitor has puttogether a list of, let's say,
three, five, three, five, six,however many.
Let the person pick one.
Um, if they've chosen them,they're much more likely to buy
(30:28):
into it.
As a process, much moredifficult for them to not like
the outcome.
Um, and again, it makes themfeel in control and superior.
So nothing wrong with that.
Life's also about pickingbattles, and if you don't need
to have a fight over something,just let the other side do it.
As I say, it feels hard from thepoint of view of the person who
(30:50):
is paying, because they willthink why should I be doing that
?
Why am I picking up all of thebill?
But actually, in the long runit will be less expensive and it
does enable you, in this newworld of the new rules, to say
that I'm the sensible one, I'mthe one who's offering all of
these opportunities and they arethe people who are saying no.
(31:13):
And if that then has an impacton time or outcome or overall
cost, so that you can say, let'ssay, you get to the end of a
final hearing, if you end upwith no choice, with a huge bill
, and you can say I offered topay for the arbitrator 10 months
ago and the cost could havebeen.
This was my cost estimate fordoing that and they would have
(31:37):
been the cost if we'd stoppedthere.
So I think it's a reallypowerful tool and I would
commend practitioners not to beafraid to say to clients pick up
the bill in the early stage ifthat's the only way you're going
to get the other person intothat arena, because it will be
cheaper in the long run.
Tamsin Caine (31:56):
The thought in my head on that one is that quite
often the one who's willing tobe open to all these other
things actually is the one whodoesn't have access to finances,
or not access to very much interms of finances.
And like where do they go?
Karin Walker (32:21):
Well, either get a loan, um you, you can make an
application for a um, lspo, solegal services, payment order um
.
Some of the providers of thatwill lend if you're out of court
, when they won't lend if you'rein court, so it.
It's an experience with levelfor lending where it's
(32:48):
arbitration, and so that'salways an option if there's no
other route.
But fees have to be paid fromsomewhere, and so relatives are
often a reasonable port of callor a bank loan or an
interest-free credit card, butthat feeling of I can't pay this
(33:12):
.
But the trouble is, what areyour options?
If you're in the court process?
You either self-represent,which a lot of people do, hence
why the courts are so bog jammedwith litigants in person as
well or you have to find themoney for something which is a
much more lengthy overall, muchmore expensive process.
(33:35):
So there's no difference really,and I think, sadly, things come
at a price.
Holidays come at a price, barscome at a price, and legal
services come at a price too,and it's about evaluating what
you want to achieve.
So you know, I do get it thatpeople just don't have resources
(33:57):
, but the sort of costs that areinvolved are not insurmountable
, the sort of costs that areinvolved are not insurmountable.
And I think certainly myexperience has been that the
cost of an arbitration overallis less than half the cost of a
contract, significantly lessthan half and time-wise probably
(34:18):
a quarter of the time.
So it really does make a bigdifference.
And so if you can't meet it andlet's say if you can't afford
the cost of an arbitration,which is probably the biggest
front-end cost, then look atmediating, say that you'll pay
(34:40):
for two or three sessions andsee how it goes.
Or say that you'll pay for aneutral evaluator to give you a
view, and then hopefullyeverybody will listen to that.
And of course you can't makepeople listen.
You've got some narcissisticpeople who will let you spend
all sorts of money doing allsorts of things and not buy into
it.
But of course there,strategically, you might want to
(35:01):
run the court process alongsideso that time is running and do
something else alongside it.
And again, rule 3.4 very muchfavours that, with the court's
opportunity to adjourn out tosomething else.
So that might be the best wayof mixing the two so that if you
really can't sort it by anout-of-court method, you've got
(35:24):
your backstop court date as anabsolute last resort, um, and I
think that also can work quitewell that sounds very good
advice.
Tamsin Caine (35:36):
Very good advice.
Um, we're coming to the end ofour time together.
Is there anything that I've notasked you, that you feel we
should have covered?
Karin Walker (35:45):
No, I don't think so, tamsin.
I think that what I would sayto people listening who are
involved in this process isdon't assume the court is the be
all and end all.
I think as a mindset we havethis idea that the court is this
bastion of the English legalsystem and justice and so on,
(36:19):
and I would really stress thatit is not.
These out-of-court models wereinitially described as
alternative, which made themsound a bit wacky and a bit odd
and a bit different and, ninetimes out of 10, unsuitable the
outset, and I'd like really tosee court as being the last
(36:45):
resort and these forms ofnon-court-based dispute
resolution really becoming thenorm.
And I think what we would findis that people who are currently
litigants in person would bemore encouraged to take proper
professional advice, knowingthat it's got an affordable
price tag to it and that theycan have a proper cost estimate
(37:08):
right at the outset and it's notgoing to run away with itself.
But the court merry-go-round interms of costs.
You get kind of sucked into aprocess that becomes
increasingly more expensive andbefore you know it you've
hemorrhaged tens of thousands ofpounds which would have been
better put to houses, schoolfees and everything else that
(37:30):
are into pension or all sorts ofother things, and it really is
dead money, and I think that I'mhoping that these changes and
the definite groundswell ofchange that we're experiencing
at the moment will encourage thepublic to realise that you
don't go to court when youseparate.
(37:52):
You can if you have to, but itreally is the last option and
there are so many ways ofdealing with things differently
and so many very competentprofessionals out there who can
help you through that in amanner which suits your budget
and will achieve an outcomewhich is going to be livable
with, hopefully fair, but mostimportantly, you'll understand
(38:17):
why you got to where you did andit won't be just imposed on you
and then have to be workedthrough.
Whether you like it or not.
You will have a participatingrole in constructing your own
future, which is so important, Ithink.
Tamsin Caine (38:36):
Yeah, absolutely agree, and that was beautifully
put, and I mean in completeagreement.
I think, the more divorces,that we can get the finances
settled quickly and by thecouple who are going to be the
ones responsible for putting itinto practice afterwards is so
(38:59):
important, and the impact on thefamily hopefully considerably
less if they can work togetherfor a solution, because then
co-parenting becomes that muchmore straightforward as well if
you've not had this huge battleand the kids' inheritance on
going through the court process.
So, karen, thank you so muchfor joining me today.
(39:20):
That was a really brilliantconversation and I'm sure it'll
help many of our listeners whoare going through this process
at the moment.
Karin Walker (39:28):
Oh, thank you, Tamsin.
Thank you so much for invitingme.
Tamsin Caine (39:36):
Hi, and I hope you enjoyed that episode of the
Smart Divorce Podcast.
If you would like to get intouch, please have a look in the
show notes for our details orgo onto the website,
wwwsmartdivorcecouk.
Also, if you are listening onApple Podcasts or on Spotify and
you wouldn't mind leaving us alovely five-star review, that
(39:59):
would be fantastic.
I know that lots of ourlisteners are finding this is
incredibly helpful in theirjourney through separation,
divorce and dissolving a civilpartnership.
Also, if you would like somefurther support, we do have a
Facebook group now.
It's called Separation, divorceand Dissolution UK Divorce and
(40:26):
Dissolution UK.
Please do go on to Facebook,search up the group and we'd be
delighted to have you join us.
The one thing I would say is doplease answer their membership
questions.
Okay, have a great day and takecare.
Hello and welcome to the Smart Divorce Podcast.
This is series nine and in thisseries we're going to explore
what makes up the working weekof various different
professionals who work in thedivorce world.
You'll start to understand whatthey do, both during the time
that you see them, how theyprepare for meetings, and what
(00:31):
work goes into the work of adivorce professional outside of
the time that you spend withthem.
I'm really looking forward tosome amazing clients in this
series.
We talked to a barrister,family solicitor, financial
planner, divorce coach andreally hoping that you're going
to enjoy it and get a lot fromit as well.
(00:57):
Hello and welcome to the SmartDivorce Podcast.
Very special episode today.
I'm delighted to welcome KarinWalker to the podcast.
Karin is an expert in non-courtdispute resolution and also on
working with clients who areeither divorcing a narcissist or
a narcissist themselves.
(01:18):
She is so good at this stuffshe's even got a best-selling
book in the area area.
I'm going to let her introduceherself properly in a second.
We're going to talk today aboutsome changes in the rules
around going to court to arrangeyour divorce.
So first of all, karen, welcome.
Thank you for joining me.
Karin Walker (01:37):
Would you introduce yourself properly,
rather than the garbled versionthat I've just done
oh, thank you first of all, somuch for inviting me to speak on
this topic.
So I'm a family lawyer,mediator, collaborative
practitioner and arbitrator, andI'm based at my firm KGW Family
(01:59):
Law in Woking.
I was chair of resolutionsDispute Resolution Committee
from 2014 to 2017.
And out of court disputeresolution has been something
very close to my heart for avery long time.
I think that it's incumbent onfamily law practitioners to
encourage people to settle theirdisputes out of court where
(02:21):
possible, and these new rulechanges are very much a step in
that direction.
So very, very welcomed, I think.
Tamsin Caine (02:29):
Excellent.
So the changes I think Iunderstand came in towards the
end of April.
Can you explain to us what theyare and how we expect them to
work?
Karin Walker (02:45):
Sure.
So the Family ProcedureAmendment no 2 rules for 2023
were effective for Monday, the29th of April of this year, and
the rules really are trying tofocus on the opportunities for
resolution away from the court,to strengthen the court's duty
(03:06):
to encourage and facilitatenon-court-based dispute
resolution, really giving morestrength and teeth to part three
of the family procedure rules,which has been in place for a
long time.
The judiciary have always hadthe opportunity to use part
three to refer cases out of thecourt system or to encourage
(03:29):
people to look at differentoptions, but actually it's been
used very infrequently to date,which in some ways, was
disappointing and in other ways,I think once people had engaged
in the court process, there wassome expectation that that's
where they would continue.
But I think the court system isso overstretched now.
(03:51):
There are so many applicationsin court and it's a system
really that is quite broken now.
It can't cope with that sort ofvolume and also it can't and
shouldn't cope with people whojust shouldn't be in that arena,
that who can resolve theirissues in a much more
(04:13):
cost-efficient, time efficientand family focused way.
Um, and people really should beaddressing that and seeing the
court system as a last resort ifthere really is no alternative,
rather than court being thefirst port of call and then
looking at something different.
(04:33):
So that really is what therules were intended to achieve.
And then, in terms of whatprofessionals need to know, the
definition of non-court disputeresolution has been widened.
So that's at Procedure Rule2.31b, and it's not limited to
(04:57):
mediation and arbitration butalso evaluation by a third party
.
So private financial disputeresolution and also
collaborative practice.
So it's really widening itright out to say, well, you
can't just now say we're notsuitable for mediation.
If that's not the right one,then look at the other range of
(05:20):
out-of-court options and seewhich one might be suitable.
Out-of-court options and seewhich one might be suitable.
The number of mediation,information and assessment
meeting exemptions has beenreduced.
So unless you really do fallinto one of the quite narrow
exemptions which are reallyaround the domestic violence
(05:41):
side, then it's no longer just atick box exercise.
You've really got to thinkabout is there something which
you could consider?
And also there are going to becost consequences with all of
this, so that if you don't lookat options that might suit a
particular couple and if youjust blanket say oh, it's not
(06:03):
suitable and leave it at that,that may have consequences.
Further down the line there's anew court form, an FM5, which
seeks views on non-court disputeresolution.
(06:23):
So if the court requires you todo so, the parties may have to
file and serve this new formwhich sets out what steps
they've taken and what they'veconsidered, so that the court
can have regard for that.
And then you've got theincreased use of stays and
adjournments which I think we'realready seeing in the space of
(06:44):
probably five, six weeks sincethese rules came into place.
So court will of its ownvolition adjourn a court process
.
So it's no longer necessary forthe parties to agree to that.
That adjournment can be imposed.
And so again it's 3.41a, butthe rule there is to stop the
(07:08):
court process and activelyencourage the parties to go and
do something else.
And I've already had two orthree referrals via that route
where people are in court andthey're being sent out.
And then I think the finalpoint which perhaps
practitioners really need to situp and take notice over, is at
(07:29):
procedural 28.3, you've now gotthe cost consequences.
So when assessing costs thecourt must have regard to a
failure by a party without goodreason to either attend a Maya
or attend some form of non-courtdispute-based resolution, and
(07:51):
that's a real step up to saythat if you're not doing this,
this could translate into costsand I think we might see more
and more cost orders of thatnature where people have been
belligerent and just refused toconsider this.
So I think I really welcome thechanges.
I think they're a hugelypositive step.
(08:13):
I personally think makingout-of-court dispute resolution
absolutely compulsory is a bitof a step too far, because I
think you have to consider whatis right for the couple, and
there is a whole range, and soit's.
I think it's not beyond the witof most family practitioners to
(08:33):
find something that would besuitable, or at least to try and
see if it works.
I think that it's important toexplain to clients that the
court isn't the provider ofjustice and retribution.
It's a very clunky,delay-ridden, inadequate last
(08:54):
resort, which will become a lotbetter if it's not full of
people that don't need to bethere.
So there's a win-win.
If it's allowed to workproperly, it's an excellent
system.
It's just it's too full ofpeople that don't need its
services.
So if these new rules can befollowed, all those people that
don't need to be there can besomewhere else, then the system,
(09:17):
which we're not overstretched,is very efficient, can work as
it was intended to do so betterall around absolutely, totally
agree.
Tamsin Caine (09:26):
I have a mound of questions from everything you've
just said, so I'm going to takeyou right back to the beginning
and ask if you would verykindly explain about the going
to court thing, because I havelots of clients who are very
(09:47):
confused between the differencebetween sending your financial
consent order to the court to besealed and going through the
court process to to have yourdivorce.
Could you possibly start verybasically, just explain that bit
to us?
Karin Walker (10:05):
yeah, of course.
So, um, I think, going rightback to basics and the start, um
, the divorce process is twosets of proceedings, or three if
you have child related issuesthat run on parallel lines.
So the divorce itself now, um,no fault divorce, all done
online via the governmentwebsite just deals with bringing
(10:29):
your marriage to an end.
So it's pure process.
You don't really need a lawyeranymore to fill out all the
forms.
You pay your court feecurrently £593, and that's it.
Then you've got the financialside.
So the you have the standardcourt form for disclosure, which
is a form E, and most peoplewill use that, whether they're
(10:52):
dealing with voluntarydisclosure or court-based
disclosure.
If we look at the voluntaryside first, so let's say you
have no proceedings issued atall, but you know you need to
sort things out.
So you say to the other sidelet's both do a form E, because
the job that you're doing iswhat is there.
And then how do we divide it?
It's as straightforward as that.
(11:14):
So to find out what there is,use a standard form.
Everybody knows what it is.
It makes sure that nothing ismissed out.
Exchange those, hopefully viasome method of dispute
resolution, which we'll talkabout in a minute you reach an
outcome that everybody can livewith.
I won't say be happy with,necessary, but everybody can
(11:34):
live with.
But that then needs to beratified by the court because in
order for it to be binding andenforceable and bring claims to
an end so if you're looking atterminating an entitlement to
maintenance, you need to havethat brought to an end by a
court order.
And so once you've got to thepoint of having an agreement,
(11:57):
you draft an order by consentand that's then submitted to the
court with a form D81, whichsets out in a very broad basis
what the financial circumstancesof the couple are.
The purpose of that form is toshow pre-agreement these are the
financial resources of thecouple.
Then the agreement isimplemented and then let's look
(12:20):
at where they will stand afterimplementation.
So that's the purpose of FormD81.
And the consent order goes intothe judge.
The judge looks at the D81 tomake sure that everything is
fair, will then ratify the ordercourt fee of £58 at the moment
and everything comes back done.
So that's the consensual, noneed for any court application
(12:43):
way of dealing with things Ifsomebody won't provide a form E
or won't provide any disclosureor just won't deal with anything
at all is ignoring everything.
Then, as an absolute last resort, you might issue your form A,
so that's your standard courtapplication for financial remedy
(13:05):
proceedings, and then you'reinto the court timetable.
So you will have a date foryour first appointment.
You will have a date 35 daysprior to that for exchange of
formacy on a formal court-basedbasis, your opportunity to ask
questions which would be dealtwith at your first appointment.
Then you'll have your FDRappointment, so financial
(13:27):
distribution appointment with ajudge, and if you really can't
sort things out there, then afinal hearing.
But going back to the use ofstays pursuant to Rule 3.4, at
any point in that process thecourt now, without the agreement
of the parties, can take peopleoff the tramline of the court
(13:49):
system and move them intosomething else.
One of the things I wouldhopefully like to demonstrate in
this podcast is that you don'thave to see an application to
court as the only alternative ifsomebody just won't play ball.
People don't play ball for allkinds of reasons, sometimes
(14:10):
emotional, sometimes awkwardness, sometimes a mixture of the two
.
But there are different ways ofbreaking that impasse and I
think, sadly, all too frequentlyyou hit an impasse and someone
will just send an applicationinto the court and say to their
client oh, we're not gettinganywhere, so we have to do this,
(14:30):
and actually that's not right.
But if it happens it's not theend of the world, because you
can still come off thattrajectory and move to something
different that perhaps couldhave been considered at an
earlier stage and wasn't.
Does that explain those two?
Tamsin Caine (14:49):
absolutely, that's absolutely perfect.
My next question is that is onethat I know I know you're going
to be able to explain very wellto me can you go through?
So we've talked about out ofcourt dispute resolution and
we've said there are lots ofoptions, and I know that they're
(15:10):
quite complex and we've spokento people on the podcast before.
But just really briefly, couldyou run through the options that
we, that clients, might want tolook at or might be able to
look at, and so that they're notfiling and going through this
long-winded court process?
Karin Walker (15:29):
Sure.
So I think the one thateverybody knows the best is
mediation, because that's whatthe MIAM Mediation Information
and Assessment meeting was firstall about, and that involves
the couple sitting down, eitherremotely or in person, with a
trained facilitator.
Their role is to help themreach their agreement.
(15:50):
They can't give them advice,but they can provide lots of
information and they'll workwith the couple to create an
outcome that they can both livewith, and so that's, I think,
the most traditional form.
Historically, it's beensuggested that mediation is
unsuitable in all kinds of caseswhere the couple find it hard
(16:14):
to sit down together.
And whilst one can understandthat and I'm not going to
underestimate how difficultmediation can be it's a big deal
to sit down with someone and dothat, but I think it's
important to think about whatthe alternatives are.
It's quite a big deal to gointo a court building and sit in
(16:36):
a very inadequate waiting areaand be in the same place.
So I think classic mediation,which is the best known, is
sometimes shied away frombecause it's perceived as being
a need to sit down together andwork something out.
I was quite interested to see.
I'm going to hold back my handto one of my guilty pleasures.
(17:00):
I watch Coronation Streetavidly, and I have done for many
years, but I'm pleased to seethat there's a dispute between
the guy who owns the funeralparlor and his sister and that's
going to be mediated.
So I'll be very interested tosee how they deal with that.
So mediation is the mostobvious one.
There are different forms ofmediation, so hybrid mediation
(17:21):
is an opportunity for themediator to hold confidences.
That's the only differencebetween classic and hybrid
mediation.
But hybrid mediators arespecifically trained to deal
with high conflict situation.
So I feel quite strongly thatif you're thinking about going
to court using the hybrid modelso you've got a highly trained
(17:45):
mediator you're probably goingto keep the couple in separate
breakout rooms, so that's goingto take away all that need to be
face-to-face.
You might want to bring thelawyers with them into the
process so that they feelsupported and advised, which can
make the mediation itself muchmore focused and fast-moving.
And so in many ways it mirrorsthe court system, but rather
(18:09):
than having a judge who willmake a decision which nobody
might like, you've got a neutralfacilitator, instructed by both
, who's starting verynon-positional, and I want this
and you want that, because tomove away from that always feels
(18:29):
like you're giving in.
Come along with an idea of yourdirection of travel, what's
important to you, what are youprepared to compromise over.
Don't be fixed to anythingspecific and let that outcome
grow through the benefit of theneutral facilitator providing
information and a steer anddiscussing steer and discussing
(18:51):
options and the lawyersproviding advice.
So I think that hybrid model isvery, very useful For people
who don't want to do that.
I think neutral evaluation is avery underused out-of-court tool
and is very inexpensive, can bebrought into any kind of
process, is very inexpensive,can be brought into any kind of
(19:11):
process mediation, hybridmediation, collaborative
practice but you're going tobring in a third party who would
probably be an arbitrator or aprivate FDR judge, somebody with
that kind of level ofqualification, who is going to
look at the issues and givetheir view as to what a judge
might do at the issues.
(19:32):
And give their view as to whata judge might do.
Nobody has to be bound by it.
We work in a very, verydiscretionary jurisdiction, so
there's no right or wrong answer.
But in cases where there is areal impasse over points which
can readily be argued one way oranother examples being
pre-acquired pension resources.
So pension that's built up along time before anybody laid
(19:53):
eyes on anybody else.
Are they going to be ignored orare they going to be taken into
account?
That's a really obvious examplewhen a neutral valuation could
just sort that out.
And I think if it's used earlyon, before everybody gets
entrenched and has spent loadsof money, it can break that
(20:14):
impasse at a very early stage.
Inherited wealth is anotherobvious example Trust assets, so
all the things where they canso easily be argued either way
and before you've got into therealms of everybody taking up
positions which they're nevergoing to move away from unless
somebody forces them to bringsomebody in at an early stage to
(20:37):
talk about it.
You're probably looking at 1500pounds to 3000 pounds in cost
between the couple, depending onwho you use, um, but money
really, really well spent.
It's probably the cost of aconference with, with good
counsel, um, but, but together,um, and and telling the couple
(21:00):
that you've got some argumentsfor this, you've got some
arguments for that, but.
But this is what I think islikely to happen.
The private fdr has become verymuch the trendy form of
out-of-court dispute resolution.
I think that's slightly down tolawyers, because it's what we
know and we're used to, so itjust mirrors the court system.
For me, I think that theprivate FDR works very, very
(21:25):
well for some people, but theprivate FDR judge is going to
give an indication, so they'renot going to work towards an
outcome.
Fdr judge is going to give anindication, so they're not going
to work towards an outcome.
They're just going to give aview and you may or may not
accept that.
Personally, I slightly preferhybrid mediation over the
private FDR, because it's not sopositional and because the
mediator can really roll theirsleeves up and try and help and
(21:47):
look at all sorts of differentalternatives, not just one
indication, but it depends onthe couple.
And then, finally, you've gotarbitration.
If you need a decision, peoplethought initially that it was
expensive.
I think in the very early daysof arbitration, the sort of
2012,.
It was billed as being for therich and famous because it was
(22:09):
private.
It's actually not.
It works very, very well forwhat I'd call the 99%ers, the
normal people who are in theobvious usual income bracket,
and although you have to pay thearbitrator, that cost pales
(22:38):
into insignificance for thereduction in overall legal costs
of a full blown out courtsituation, not least because it
can be resolved in about two tothree months as opposed to 18
months.
So, and you're going to havesomeone who has read the papers,
and also arbitrators wantrepeat work, so they're going to
be very keen to be seen asdiligent and fair.
They're not likely to bepro-wife, pro-husband, pro
either one side or the other,and they don't want the
(23:02):
solicitors who've instructedthem to go away thinking, well,
they didn't read all of that orthey swayed towards.
You know they want to be asfair and diligent as possible.
So not that I'm saying judgesaren't, but arbitrators just
have more time.
You have your hearing on a datethat you want, in a nice
environment with coffee andsandwiches and proper facilities
.
So you know what's not to likereally.
(23:22):
Those are the principal formsof out of court.
And then, of course, thecollaborative practice, which
has slightly fallen away, Ithink, because of this idea that
if it doesn't work you have toinstruct some new solicitors
puts people off, but you canarbitrate without instructing
new solicitors.
And then you've got thecertainty project, which I was
(23:45):
very involved in, which is thefusion of mediation and
arbitration.
So mediate first.
If that doesn't work, yourarbitrator, who's appointed at
the outset, will make a decisionfor you.
Tamsin Caine (23:56):
And then there's assent, which is the fusion of
the private FDR, and arbitration, which is a very new way of way
of dealing with things, whichum zoe, um bloom put together in
the first instance, um, but umis out there and hopefully will
be well received, um, so that'sa quick canter through a lot to
(24:24):
take in, but um, but thank youfor that because it was very
clear and covered kind of a lotof different options that are
available to people and I think,aside from thinking about the
the monetary cost of going tocourt against some of these
other options, you know you'vegot to also think of the
(24:47):
emotional cost of the delays ofthe court process.
As you said, you know you couldbe looking at 18 months,
whereas actually in if you useone of these non-court options,
you could be done and dusted ina matter of months and and that
as an emotional cost can beabsolutely huge on couples,
can't it?
Karin Walker (25:07):
The expectation is that out-of-court dispute
resolution will slot into the20-week period between the issue
of an accusation andpronouncement of conditional
order, so it should package upreally neatly.
I think also, when you talk,tamsin, about emotional costs,
it's really important not toforget the impact on the family,
(25:27):
particularly the children, and,if they know, are engaged in
court proceedings for many, many, many months.
I think it's important to sayto couples what memories do they
want their children to havewith their childhood?
Um, do they want it to be okay,mom and dad separated, but they
work together positively tosort this out and it was done
(25:52):
quite quickly and then we allgot on with our lives?
Or do they want to have thememory of of, you know, constant
to-ing and fro-ing ofcorrespondence and and a number
of court hearings and everybodygetting very stressed ahead of
them and it hanging over thefamily like a dark cloud for
more than a year, which is aninevitability, and I think the
(26:14):
impact upon children is very,very real and sometimes
something that their parentsforget about.
So I think that's quiteimportant.
Um, you wanted me to look turnsin it of what to do if one of
the couple won't play ball withthese out of court.
Tamsin Caine (26:34):
I do because this is common, this is, you know,
this is the.
This is the situation I I'mdealing with every day and I'm
sure you're dealing with everyday.
You know where one person ishappy to give disclosure, or one
person is happy to considermediation or one of the other
options that's out there, andthe other party's absolutely
(26:56):
determined that either they'regoing to do nothing, as you
mentioned before, or they wanttheir day in court and they want
a judge to decide, and that'sthe be all and end all, and I
just think that leaves the otherperson who's happy to engage
and try and work things throughin a really almost impossible
(27:18):
situation situation and I thinkthe new rules give opportunities
to encourage the person whowants their day in court to look
at something different.
Karin Walker (27:31):
If you've got somebody who is, let's say,
narcissistic on the other side,appealing to their sense of
specialness and saying you know,these are very innovative new
ways of dealing with things.
This is what every educated,sensible person would do, like
you.
So you know, why don't youengage in something that can
(27:55):
appeal to that sense ofspecialness that they have?
So it's not out of the questionto nudge them in that direction
.
But there are people,unfortunately, who just will do
nothing and be as awkward anddifficult as possible.
But I think that the increaseduse of stay is from the court so
(28:18):
that the opportunity for thejudiciary to say no enough,
we're not going down this road,you are going to try something
else.
I think also from the costperspective and the new FM5 form
, if you want to mediate or youwant to arbitrate I know this
(28:39):
can sometimes be a hard sell tothe client who's keen to do it.
But to say to them offer to paythe other person's costs, offer
to pay for the arbitrator infull, offer to pay for the
mediator in full, because ifthey still say no, what on earth
is the reason for not doing?
And if you then go into court,you have the obligation now to
(29:04):
provide correspondence dealingwith out-of-court options and
you have to respond to aninvitation to engage in
non-court dispute resolution ina considered and timely fashion.
So if you offer first of all,let's mediate, they come back
and say no.
They might say I can't affordit or I'm not going to pay for
the courts free, I'm not goingto pay for an arbitrator.
(29:26):
You go back and say okay, we'llpay.
So now what's the problem?
Although it feels a bit unfair,why should one person be paying
for that?
But actually, point one, life'snot fair.
And point two, the costs thatyou're going to incur are going
(29:47):
to far outweigh paying for thearbitrator in the fullness of
time if you go down the courtroute.
So why not put the other personunder pressure and also have
the possibility of getting acost order because you've been
the one that's been supersensible?
Um, because you're taking awayall the reasons to say no.
If you're dealing with somebodydifficult, always let them pick
(30:07):
the arbitrator.
All arbitrators are good andmediators I think they're all
properly trained, professionalpeople.
And if your solicitor has puttogether a list of, let's say,
three, five, three, five, six,however many.
Let the person pick one.
Um, if they've chosen them,they're much more likely to buy
(30:28):
into it.
As a process, much moredifficult for them to not like
the outcome.
Um, and again, it makes themfeel in control and superior.
So nothing wrong with that.
Life's also about pickingbattles, and if you don't need
to have a fight over something,just let the other side do it.
As I say, it feels hard from thepoint of view of the person who
(30:50):
is paying, because they willthink why should I be doing that
?
Why am I picking up all of thebill?
But actually, in the long runit will be less expensive and it
does enable you, in this newworld of the new rules, to say
that I'm the sensible one, I'mthe one who's offering all of
these opportunities and they arethe people who are saying no.
(31:13):
And if that then has an impacton time or outcome or overall
cost, so that you can say, let'ssay, you get to the end of a
final hearing, if you end upwith no choice, with a huge bill
, and you can say I offered topay for the arbitrator 10 months
ago and the cost could havebeen.
This was my cost estimate fordoing that and they would have
(31:37):
been the cost if we'd stoppedthere.
So I think it's a reallypowerful tool and I would
commend practitioners not to beafraid to say to clients pick up
the bill in the early stage ifthat's the only way you're going
to get the other person intothat arena, because it will be
cheaper in the long run.
Tamsin Caine (31:56):
The thought in my head on that one is that quite
often the one who's willing tobe open to all these other
things actually is the one whodoesn't have access to finances,
or not access to very much interms of finances.
And like where do they go?
Karin Walker (32:21):
Well, either get a loan, um you, you can make an
application for a um, lspo, solegal services, payment order um
.
Some of the providers of thatwill lend if you're out of court
, when they won't lend if you'rein court, so it.
It's an experience with levelfor lending where it's
(32:48):
arbitration, and so that'salways an option if there's no
other route.
But fees have to be paid fromsomewhere, and so relatives are
often a reasonable port of callor a bank loan or an
interest-free credit card, butthat feeling of I can't pay this
(33:12):
.
But the trouble is, what areyour options?
If you're in the court process?
You either self-represent,which a lot of people do, hence
why the courts are so bog jammedwith litigants in person as
well or you have to find themoney for something which is a
much more lengthy overall, muchmore expensive process.
(33:35):
So there's no difference really,and I think, sadly, things come
at a price.
Holidays come at a price, barscome at a price, and legal
services come at a price too,and it's about evaluating what
you want to achieve.
So you know, I do get it thatpeople just don't have resources
(33:57):
, but the sort of costs that areinvolved are not insurmountable
, the sort of costs that areinvolved are not insurmountable.
And I think certainly myexperience has been that the
cost of an arbitration overallis less than half the cost of a
contract, significantly lessthan half and time-wise probably
(34:18):
a quarter of the time.
So it really does make a bigdifference.
And so if you can't meet it andlet's say if you can't afford
the cost of an arbitration,which is probably the biggest
front-end cost, then look atmediating, say that you'll pay
(34:40):
for two or three sessions andsee how it goes.
Or say that you'll pay for aneutral evaluator to give you a
view, and then hopefullyeverybody will listen to that.
And of course you can't makepeople listen.
You've got some narcissisticpeople who will let you spend
all sorts of money doing allsorts of things and not buy into
it.
But of course there,strategically, you might want to
(35:01):
run the court process alongsideso that time is running and do
something else alongside it.
And again, rule 3.4 very muchfavours that, with the court's
opportunity to adjourn out tosomething else.
So that might be the best wayof mixing the two so that if you
really can't sort it by anout-of-court method, you've got
(35:24):
your backstop court date as anabsolute last resort, um, and I
think that also can work quitewell that sounds very good
advice.
Tamsin Caine (35:36):
Very good advice.
Um, we're coming to the end ofour time together.
Is there anything that I've notasked you, that you feel we
should have covered?
Karin Walker (35:45):
No, I don't think so, tamsin.
I think that what I would sayto people listening who are
involved in this process isdon't assume the court is the be
all and end all.
I think as a mindset we havethis idea that the court is this
bastion of the English legalsystem and justice and so on,
(36:19):
and I would really stress thatit is not.
These out-of-court models wereinitially described as
alternative, which made themsound a bit wacky and a bit odd
and a bit different and, ninetimes out of 10, unsuitable the
outset, and I'd like really tosee court as being the last
(36:45):
resort and these forms ofnon-court-based dispute
resolution really becoming thenorm.
And I think what we would findis that people who are currently
litigants in person would bemore encouraged to take proper
professional advice, knowingthat it's got an affordable
price tag to it and that theycan have a proper cost estimate
(37:08):
right at the outset and it's notgoing to run away with itself.
But the court merry-go-round interms of costs.
You get kind of sucked into aprocess that becomes
increasingly more expensive andbefore you know it you've
hemorrhaged tens of thousands ofpounds which would have been
better put to houses, schoolfees and everything else that
(37:30):
are into pension or all sorts ofother things, and it really is
dead money, and I think that I'mhoping that these changes and
the definite groundswell ofchange that we're experiencing
at the moment will encourage thepublic to realise that you
don't go to court when youseparate.
(37:52):
You can if you have to, but itreally is the last option and
there are so many ways ofdealing with things differently
and so many very competentprofessionals out there who can
help you through that in amanner which suits your budget
and will achieve an outcomewhich is going to be livable
with, hopefully fair, but mostimportantly, you'll understand
(38:17):
why you got to where you did andit won't be just imposed on you
and then have to be workedthrough.
Whether you like it or not.
You will have a participatingrole in constructing your own
future, which is so important, Ithink.
Tamsin Caine (38:36):
Yeah, absolutely agree, and that was beautifully
put, and I mean in completeagreement.
I think, the more divorces,that we can get the finances
settled quickly and by thecouple who are going to be the
ones responsible for putting itinto practice afterwards is so
(38:59):
important, and the impact on thefamily hopefully considerably
less if they can work togetherfor a solution, because then
co-parenting becomes that muchmore straightforward as well if
you've not had this huge battleand the kids' inheritance on
going through the court process.
So, karen, thank you so muchfor joining me today.
(39:20):
That was a really brilliantconversation and I'm sure it'll
help many of our listeners whoare going through this process
at the moment.
Karin Walker (39:28):
Oh, thank you, Tamsin.
Thank you so much for invitingme.
Tamsin Caine (39:36):
Hi, and I hope you enjoyed that episode of the
Smart Divorce Podcast.
If you would like to get intouch, please have a look in the
show notes for our details orgo onto the website,
wwwsmartdivorcecouk.
Also, if you are listening onApple Podcasts or on Spotify and
you wouldn't mind leaving us alovely five-star review, that
(39:59):
would be fantastic.
I know that lots of ourlisteners are finding this is
incredibly helpful in theirjourney through separation,
divorce and dissolving a civilpartnership.
Also, if you would like somefurther support, we do have a
Facebook group now.
It's called Separation, divorceand Dissolution UK Divorce and
(40:26):
Dissolution UK.
Please do go on to Facebook,search up the group and we'd be
delighted to have you join us.
The one thing I would say is doplease answer their membership
questions.
Okay, have a great day and takecare.
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