Post-separation (ABUSE) is a onesided (Legal Conflict) vs Alternative Means Of Conflict Resolution
An obvious power imbalance.
1. One party has all the power and money and has been the dominating person in the relationship.
2. One party has been left in deep trauma, grief and anxiety, without access to money and legal representation.
Couples can choose the easy way or the more complicated route.
The easy way is negotiation.
The complicated route is litigation.
Anyone who decides to use the Justice system to resolve a conflict in separation or divorce must have deep pockets. Or be absolutely insane or crazy. Most people cannot afford the economic and emotional costs involved in going through a judicial procedure.
There are other ways to manage and resolve the conflict that can be quicker, easier and less costly, the facts are that they are rarely used.
What are the four types of Alternative Dispute Resolution?
The most common types of ADR for civil cases.
Mediation - Mediation is a method of dispute resolution in which two or more parties voluntarily try to reach an agreement by themselves or with the intervention of a mediator to reach agreement in an impartial and neutral manner.
Conciliation - The conciliator makes proposals to the parties. It can be public or private.
Arbitration - If you choose arbitration, you cannot go to court later, but must abide by the decision of the arbitrator or arbitral tribunal.
Negotiations - towards the best solution. Direct negotiation between the parties, by themselves or assisted by their legal advisor, or through their lawyers, is also an appropriate method of dispute resolution.
NB. It is noted that in cases where there has been any form of domestic abuse or gender violence, mediation or negotiations between the parties directly are not recommended. Any negotiations should go through their lawyers to obtain an out-of-court resolution.
The main advantages of alternative dispute resolution are confidentiality, flexibility, and a faster dispute resolution process.
Encouraging their use or imposing sanctions if they are not used
To try and reach an agreement before going to court.
This requires two things, that the states offer means to try to reach agreements and that when this is not achieved, they can resort to the jurisdiction
Solicitors and lawyers are the main point of contact.
The reality is that parties in a situation may NEVER be offered the opportunity to avoid direct conflict and Solicitors are quick to jump towards the Justice system which adds fuel to the hot embers that may be flickering because of the way a separation or divorce has been initiated by one of the parties involved. Emotions may be trigered.
The facts are that these methods are rarely used
This is fundamentally due to the fact that they are not known by the majority of citizens . Therefore, states must implement measures that achieve better knowledge of them and greater dissemination.
If people think first and then use communication to discuss possible outcomes then most issues of conflicts can be resolved amicably.
However, if one party is angry, and abusive towards the other party there is most likely no chance to come to any amicable settlement because they will not listen. Where one party has more power, control and financial resources they are in the driving seat. They can and do go straight to litigation with an I must win at all costs attitude they will throw money away on legal representation in the hope that a lawyer will get them the outcome they seek.
WRONG attitude.
In order to come out in a win:win resolution with both parties accepting a reasonable outcome there needs to be open discussion and if the parties are unable to communicate directly the communication needs to go through third parties who can bargain in a calm and resolved manner.
Most people do not want to be involved in lengthy legal battles. It is never a good position to be in, health-wise, time-wise, emotionally and financially it can drain your energy and your money.