Alternative Dispute Resolution

Cases in the family court are often listed several at a time and this means the Judges rarely have just one case and one set of facts to cover and can frequently be focusing on multiple facts and issues at one time.

Cases can be cancelled at short notice because of the shortage of Judges and financial applications in divorce can take up to two years to be brought to a conclusion. Court buildings are often uncomfortable and there is very little privacy.

In the event of relationship breakdown it is in the interest of families to bring their disputes to an end in a timely fashion so alternative methods of dispute resolution, other than Court, should be considered.

There are various ways to avoid Court and all these options can bring about a much quicker resolution and will save significant costs:

Mediation

In mediation, you and your partner will meet with a family mediator to try and resolve your dispute.  Mediators can assist in reaching agreement about how you divide up assets in the context of a relationship breakdown and can facilitate discussion about the arrangements for children.

A mediator is independent and professionally qualified and will be able to explain the legal framework that affects your position and also help you understand how matters would be dealt with by a Court. Mediators do not give legal advice, but they are frequently from legal backgrounds and so have valuable background knowledge about the law and the court system and how it operates.

If both parties are willing to address matters in this way, then both parties are screened separately by the mediator to ensure that the case is suitable for this type of dispute resolution.

Mediation is confidential and privileged. It allows you and your former partner to work together to come up with solutions which are suited to your particular needs.

Mediation usually takes place in person and sessions are face to face though they can sometimes take place remotely by Video Conferencing , Skype or Teams.

Most mediation sessions will take place with both parties together in the same room.  There are, however, certain circumstances in which it may be possible to ‘shuttle’ mediate, so the parties are in separate rooms and the mediator moves between the two parties.

There is also sometimes the possibility of ‘hybrid’ mediation where the mediator facilitates discussion between the parties and they are able to have their legal representatives present.

The mediator will record the discussions and provide minutes of the meetings. If issues are resolved then the mediator can be asked to write up a Memorandum of Understanding which sets out the detailed terms that have been agreed.

Mediation is voluntary and the process relies on both parties acting in good faith and with respect, transparency and honesty.

Arbitration

Arbitration is a process whereby the parties, usually represented by their solicitors, jointly approach an independent family lawyer to listen to their arguments and make an award at the end of the case.

Arbitrators are experienced and trained lawyers who are paid to undertake this work.  Their role is akin to that of a Judge in the family Court and they can be instructed to deliver decisions which relate to finances or children, either about the entirety of the case or on discrete issues.

The process is confidential and takes place at a time and venue which suits the parties. This means it can be conducted in comfortable surroundings and that it will be concluded in a timely fashion.

How the case is dealt with and managed is decided by the parties and the Arbitrator so this means it can be heard in person or dealt with remotely and by way of either submission or oral evidence or both.

This process is a genuine alternative to going to Court. The award is binding on the parties and the final terms are included in a formal Court order to ratify the outcome.

Private FDR

If you are getting divorced and arguing about your finances then you may have made an application to the Court for a financial remedy order. This means you are asking a Judge to decide how your assets should be divided and for an order that determines what should happen, for example, to your house, pension or business. Within these Court proceedings you attend Court for a hearing called an FDR (financial dispute resolution) appointment. This appointment is to negotiate and includes judicial input to try and settle the case.

You can replace the normal Court based FDR with a private FDR. This process can be used if you are involved in a case which is going through the Court but it can also be used where no litigation has commenced.

The FDR instructed privately means that both parties ask their solicitors or barristers to prepare the case on their behalf and present it to an independent lawyer, who sits as if a Judge in Court, with a view to helping parties broker a deal which can be incorporated into a settlement.

Private FDR’s are confidential and hearings can take place remotely, or they can take place at face-to-face meetings at a venue which is convenient to all parties.

A fee for the FDR Judge is agreed in advance and this will provide for their undivided attention on just your case for the whole day.

Private FDR’s can also be used for disputes between cohabitees about property or concerning financial provision for children.

Collaborative Law

Some family lawyers are collaboratively trained.  This means that they have received expert instruction and certification to enable them to conduct cases in a collaborative manner.

The aim is to enable parties to meet together and discuss their differences with a view to achieving an outcome which is satisfactory to both and with them both having had legal advice along the way.

Both parties have to instruct a separate and qualified collaborative lawyer. The clients and lawyers sign up to a collaborative agreement which means that they will only discuss the issues of the case in 4-way round the table meetings with all parties present.

These meetings can cover finances and /or children and are confidential and privileged. In financial matters both parties will be asked to provide full and frank financial disclosure so discussion and negotiation can take place.

All parties must be highly invested in dealing with the matter consensually as if parties fail to reach an agreement then the clients have to both instruct new solicitors.  This condition is part of an incentive to settle the matter without recourse to Court proceedings.