Alternative Dispute Resolution

Alternative Dispute Resolution – or ADR – is where a couple going through a family law dispute agree to use a particular process to try and resolve their dispute without going to court. It can also be referred to as non-court dispute resolution.

What are the benefits of ADR?

ADR has many benefits. Depending upon which option is chosen, it can be significantly cheaper than going through the court process. It is almost always quicker to resolve disputes in an ADR forum.

ADR gives couples more control and certainty of outcome. It can also enable them to have more direct discussions to resolve matters, which can be important in cases where couples will continue to co-parent after their dispute is resolved.

Why do I need to consider ADR?

From 29 April 2024, the definition of non-court dispute resolution will be widened to include “methods of resolving a dispute other than through the court process, including but not limited to mediation, arbitration, evaluation by a neutral third party (such as a private Financial Dispute Resolution process) and collaborative law.” The change is designed to encompass the many available methods of ADR, rather than focusing on mediation as the only option.

Couples wishing to start court proceedings in relation to financial matters or the arrangements for their children already have to complete a form to confirm that they have attended a meeting with a mediator and considered whether their dispute could be better dealt with in mediation. The new court rules will require the parties to confirm their views on engaging with all forms of ADR, not just mediation.

If court proceedings are started, the judge may make the decision during the proceedings to adjourn the case to enable some form of ADR to take place, if it is appropriate. The judge will not need the agreement of the parties to do this. The court also has the power to impose costs order on parties who fail, without good reason, to engage in ADR if it is appropriate to do so.

What are the ADR options?

Mediation

The mediation process involves a couple choosing and working with an independent mediator who encourages them to come to a solution that works for them both and their children (if applicable). Parties can take their own legal advice outside of the mediation process, but their lawyers do not usually attend the mediation sessions with them.

The mediator is impartial, but will give the couple information as to the law and the approach that the court might take on a particular issue. The process can reduce tension and hostility as couples have the opportunity to discuss matters face to face, with the guidance of the mediator who helps them make informed decisions about their futures.

If an agreement is reached in mediation, it is not legally binding. The couple must instruct their own lawyers to prepare the necessary paperwork to make the agreement legally binding.

Some mediators are qualified to see children as part of the mediation process.  Having had an initial meeting with the parents, the mediator will then have a meeting with the child without the parents, although another adult will be present.  After this, the mediator will report back to the parents any points that have been specifically agreed.

The advantages of mediation are that it can be set up quickly, the couple can choose which mediator they want to instruct, and it can be a very cost-effective option as the couple are jointly paying one mediator rather than each paying their own lawyer.  The process is private, meaning that parties are encouraged to speak freely, and it can leave couples feeling that they have had input in the decision making process, often boding well for them continuing to work together in the future if they will be co-parenting for some years to come. Mediation can be offered on a remote and / or shuttle basis, which can be helpful in cases where there has been domestic abuse.

The disadvantage of mediation is that the agreement reached between the parties is not legally binding, so further time and cost is needed for the agreement to be converted into a legally binding format.

One Couple One Lawyer

The one couple one lawyer approach allows a couple, in appropriate circumstances, to instruct one lawyer to handle all aspects of their divorce, including child and financial arrangements. The format is similar to mediation, but the key difference is that where a mediator must remain impartial, a lawyer in a one couple one lawyer forum can provide advice to the couple and prepare the necessary paperwork to make the agreement legally binding.

The advantage of the one couple one lawyer approach over mediation is that the lawyer can provide the couple with specific advice and prepare the necessary paperwork to make the agreement legally binding, which can save time and money.

The disadvantage of the one couple one lawyer approach is that it is only suitable in specific circumstances. It relies on the couple taking an amicable approach to their case and agreeing to cooperate with each other to reach a resolution. It is not appropriate in cases where there has been domestic abuse.

Collaborative Law

Collaborative law is a process where each party appoints their own collaboratively trained lawyer to represent them. All four participants (clients and lawyers) sign up to an agreement to try and resolve matters in a constructive way and without recourse to court proceedings. The lawyers’ commitment includes an agreement not to represent their client if one of the separating parties commences court proceedings. If that were to happen, both parties would have to instruct a new firm of solicitors.

Within the collaborative process, a series of four-way meetings takes place with the couple and each of their lawyers being present throughout. This enables options to be fully explored with the benefit of legal advice. If an agreement is reached, the lawyers work together to prepare the necessary paperwork to make the agreement legally binding.

The advantage of collaborative law is that the parties feel that they have control and input in the process and that they are working together. It can be a quicker process than the traditional method of dealing with matters between solicitors, as there are a number of face to face discussions rather than letters being sent back and forth.

The disadvantage of collaborative law is that if either party chooses to start court proceedings, the collaborative process comes to an end and the couple must instruct new lawyers to act for them in the court proceedings. This can mean significant additional costs for the parties.

Private FDR / Early Neutral Evaluation

An FDR is a Financial Dispute Resolution appointment, which usually takes place as the second stage of contested financial court proceedings. At a court based FDR, a judge gives an indication of the likely outcome in the case after considering the financial paperwork and hearing from the lawyers for the parties. This indication is not legally binding, it is intended to help the couple to negotiate a settlement without proceeding to a costly and uncertain final hearing.

A private FDR involves a couple agreeing to hire a judge on a private basis, outside of court proceedings, to give an evaluation of the likely outcome of financial matters between them. The judge is usually an expert family law barrister and private FDRs have the advantage of the couple being able to choose their judge, although they have to pay for their service. The decision of the judge is not legally binding on the couple, but it can assist a great deal in encouraging a settlement, as it provides an indication of the approach likely to be taken by a judge within court proceedings if an application were to made.

A similar process can be followed in cases where the dispute is in respect of children and this is known as an early neutral evaluation meeting.

The advantages of private FDRs are that the parties can choose their judge and their venue and the appointment can be set up quickly. The parties can feel confident that their judge is an expert in family law matters, as opposed to a judge at court, who may have a specialism in another area of law.

The disadvantages of a private FDR are that it can be costly. As well as paying their own lawyer’s fees and the fee of a barrister to represent them at the FDR, the parties must share the cost of the expert judge. The indication of the judge is not legally binding on the parties, so they are not required to follow it if they do not agree with it. If they do agree, there will still be time and cost involved in preparing the necessary paperwork to make the agreement legally binding.

Arbitration

Arbitration involves a couple choosing and appointing an independent qualified arbitrator to adjudicate the dispute between them. It is similar to a private FDR process but the key difference is that the arbitrator can hear evidence from the parties and crucially, the decision of the arbitrator is legally binding upon the parties.

The advantages of arbitration are that, as with private FDRs, the parties can choose their judge and their venue and the process can be undertaken much more quickly than going through court proceedings. The decision of the arbitrator is legally binding, so the parties have the certainty that once a decision is made, the process will be at an end.

The disadvantage is that it can be as expensive as court based disputes, as the parties follow the same process in terms of financial disclosure, expert opinion and attendance at arbitration. However, as the whole process is usually concluded more quickly than a court process, there is likely to be a cost saving overall.

The Family team at Thomson Snell & Passmore are able to provide further advice as to the options available when seeking an Alternative to Court, and will be discussing some of these options in more detail over the coming weeks.