Solicitor-Led Negotiation

What Solicitor-Led Negotiation Is

The Family Procedure Rules define non-court dispute resolution as methods of resolving a dispute other than through the court process, and rule 2.3 says the list is not limited to the examples it gives. The Family Mediation Council describes solicitor negotiation as the model where you each have a lawyer who communicates by email and telephone, with one or more round table meetings to assist the negotiations where needed.

The difference from family mediation is who is in the room. A mediator is independent, works with both of you and takes a neutral approach. In negotiation your solicitor acts for you alone: every proposal is checked against what a court might order before it is sent, and every proposal from the other side is explained before you answer it. Some clients come to negotiation because mediation has ended without agreement; others settle the finances through solicitors while a mediator helps with the arrangements for the children.

Negotiation fits particularly well where financial disclosure has to come first. Pensions, a business or property held in other names need documents before anyone can sensibly make an offer, and a solicitor can ask for them within the limit the Pre-application Protocol sets: requests must be necessary, relevant and limited to what is reasonably required.

What the Court Expects Before an Application

For financial claims the governing guidance is the Pre-application Protocol annexed to Practice Direction 9A, in the form introduced by Practice Direction Update No 5 of 2024 from 31 May 2024. It applies to every financial remedy application whatever the size of the assets and whether or not the parties are represented. The Protocol says the court will usually expect each party, before proceedings start, to have attended a MIAM unless a valid exemption applies, considered and proposed appropriate non-court dispute resolution, given full disclosure, set out their position clearly and attempted negotiation by making reasonable proposals.

One sentence in the Protocol matters more than any other here. Although there is a place for constructive negotiation via correspondence between legal representatives, the Protocol says that alone shall not be a sufficient attempt at non-court dispute resolution for its purposes, while other forms of negotiation between legal representatives, such as round table meetings, may be sufficient depending on when and how they took place. We therefore plan a negotiation so that, if it fails, you can show the court more than a file of letters: a round table meeting, a private FDR or mediation alongside the correspondence.

A party who is not willing to attend non-court dispute resolution should give reasons in writing. Where nothing has been attempted the court may decline to start its timetable or suspend it, and an application should not be made while a process is under way or while settlement is a reasonable prospect, unless there is a good reason such as stopping assets being moved.

Costs follow conduct. The general rule in financial remedy proceedings is no order for costs, but rule 28.3(7) requires the court to have regard to any failure, without good reason, to attend a MIAM or non-court dispute resolution, to any open offer to settle and to how a party pursued or responded to an issue. Practice Direction 28A adds that the court will generally conclude that to refuse openly to negotiate reasonably and responsibly amounts to conduct for which it will consider a costs order. Rule 3.3 also requires the court to consider non-court dispute resolution at every stage.

In a dispute about the children the financial Protocol does not apply, but Practice Direction 12B carries its own pre-application protocol, which says an exchange of letters between legal representatives is not usually considered sufficient to be non-court dispute resolution. Part 3 applies too: the MIAM requirement covers an application for a child arrangements order, the court must still consider non-court dispute resolution at every stage, and whenever a judge decides a question about a child's upbringing the child's welfare is the paramount consideration.

Disclosure, Offers and Common Problems

Negotiation only works on honest numbers. The Protocol underlines the duty of full and honest disclosure of all material facts, documents and information, says the duty continues until a final order is made so later changes must also be disclosed, and warns that an agreement based on dishonest information supplied in pre-application disclosure is very unlikely to be upheld by the court. Disclosure uses Form E (or Form E1 or E2 where those apply) as the guide to format, documents are limited at first to what the form requires, and the figures are summarised in the composite asset and income schedule so both sides negotiate from the same page.

Offers come in two forms. An open offer can be shown to the court at any stage and is among the matters the court must weigh on costs. An offer made without prejudice is not admissible in financial remedy proceedings except at a financial dispute resolution appointment, where rule 9.17 requires details of all offers, proposals and responses to be filed. We choose the form of each proposal deliberately.

Tone is regulated too. Correspondence must focus on clarifying the claims and resolving the issues, protracted and unnecessary letters must be avoided, the impact of any letter on the reader must always be considered, and a first letter drafted by a solicitor should be approved by the client before it is sent.

The problems we see most often are:

• the other side answers slowly or not at all
• disclosure arrives in pieces, or requests go beyond what is necessary, relevant and proportionate
• money is moved or an asset is sold mid-negotiation, which may call for a freezing order rather than another letter
• one party suspects hidden assets and non-disclosure
• terms are agreed and one party withdraws before an order is made

How Solicitor-Led Negotiation Works

1. At the first meeting we identify the issues, advise on the likely range of outcomes and confirm whether a MIAM is needed or an exemption applies; our MIAM advice page explains the exemptions.
2. We draft the first letter to the other party or their solicitor, approved by you, setting out your position and proposing non-court dispute resolution as the Protocol expects. Where the other party has no solicitor the letter recommends independent legal advice.
3. The two sides exchange voluntary disclosure on Form E with supporting documents, raise only the questions that are necessary, and agree a composite schedule of the assets, debts, pensions and income.
4. Proposals and counter-proposals follow, each explained to you before you answer, with the choice between an open and a without prejudice offer made case by case.
5. If the correspondence stalls we propose a round table meeting, a private FDR or mediation, so the attempt at non-court dispute resolution is more than letters.
6. When terms are agreed we record them in writing and apply for a consent order for the finances, or record the arrangements for the children. If nothing can be agreed, financial remedy proceedings or a children application remain open.

Making the Agreement Binding

A financial agreement reached by letter is not itself a court order. Under rule 9.26 the application for a consent order is accompanied by a draft order endorsed with the respondent's agreement, and each party files a statement of information so the judge can see the figures behind the terms. Unless the court directs otherwise neither party needs to attend, and the MIAM requirement does not apply to a consent order application. A court fee is payable, and the current amount is on the GOV.UK court fees page.

Where neither of you is ready to divorce, the terms can be recorded in a separation agreement.

Arrangements for the children do not need an order to be followed. Section 1(5) of the Children Act 1989 says a court shall not make an order unless it considers that doing so would be better for the child than making no order at all, so a written agreement between parents is often the end of the matter. Where an order is needed it can be applied for by consent, which is also outside the MIAM requirement.

When Legal Advice Is Especially Important

Negotiation through solicitors, rather than direct talks or mediation alone, matters most where:

• there has been domestic abuse and you do not want to negotiate face to face; evidence of domestic abuse is a MIAM exemption, and our domestic abuse and injunctions pages cover protective orders. In immediate danger call 999; the National Domestic Abuse Helpline is 0808 2000 247.
• the other party has a solicitor and you do not: the Protocol expects their solicitor to recommend independent advice, and the first letter you receive is the moment to take it
• the assets include pensions, a business or property abroad, so a reasonable offer cannot be made until the values are known
• you suspect disclosure is incomplete or money is being moved
• your right to stay in the UK depends on the relationship, which our family immigration pages explain

How RakLAW Solicitors Can Help

We conduct solicitor-led negotiation from 42 Shad Thames in Southwark, a short walk from Tower Bridge, as one of the out of court options we advise on. We tell you at the outset whether a meeting or mediation should run alongside the correspondence to satisfy the Protocol, and we keep the letters proportionate, because the Protocol says it is not acceptable for the costs of a case to be disproportionate to what is in dispute.

RakLAW does not offer legal aid. Our charges are set out on the family law fees page, the first 15 minute consultation is free, and you can call 0203 345 2000 or book an appointment to talk through whether negotiation is the right route for you.