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Alternative Dispute Resolution: how to avoid family court

View profile for Karen Johnson
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Alternative Dispute Resolution: how to avoid family court

Alternative Dispute Resolution (ADR) means a process by which a dispute is resolved other than through the courts. It covers a wide variety of different options and requires careful consideration both at the outset of a dispute and on an ongoing basis. Choosing the right dispute resolution process can result in better, quicker and cheaper outcomes.

The courts have long been considered the foundation of dispute resolution. Our current court system is the result of 1,000 years of evolution. From trial by ordeal (think witch trials) to trial by combat, to Justices and jury’s of knights and so on. Today our courts thankfully hold little resemblance to their earliest manifestations and our beliefs and laws have also evolved.

Today’s courts are however, not without problem. Whilst participants may no longer physically fight, a court hearing remains a battle of words; each party seeking to persuade the judge that they are right and the other person wrong. In family law in particular, this can be hugely destructive and impact parties and their children long after the proceedings have concluded.

The proceedings also tend to be very lengthy and costly. It is a commonly held belief that the court system is underfunded, under-resourced and inefficient. 

Changes made with the apparent aim of efficiency such as centralising divorces to regional divorce registries did the exact opposite with divorce time scales. I am happy to say that the more recent move to online divorce has largely resolved that particular issue although paper divorces remain subject to the same delays.

When we consider other family issues such as financial aspects or private disputes addressing the arrangements for children, there remain considerable delays. This is not helped by the current pandemic. 

Whilst courts have continued to operate throughout and are considered an essential service, the pandemic has necessitated a move to remote hearings whether by telephone or video with only limited hearings now taking place in person. 

This has required an unprecedented speed of adjustment from the judges and courts and in some cases, remote hearings seem to have benefits over court attendance – easier access, cost etc. However, it is not suitable for all cases and has also meant that the court has, understandably had to prioritise certain types of work such as domestic violence injunctions and care proceedings. 

General financial proceedings and standard non-emergency private children applications are not considered a priority. This means we are seeing even longer delays with hearings being listed 4 – 6 months ahead and the court also adjourning hearings at the last minute.

This is not to say that the court should be avoided at all costs. Indeed, for some cases an application to the court remains the best and perhaps only option. This may be because an alternative method can not be agreed or is not suitable or affordable. 

All said and done, despite its drawbacks, the family court is filled with excellent family judges who care deeply about their work and strive to ensure proper outcomes for those that come before them. Also encouraging agreement and the use of alternative dispute resolution processes.

What are the alternatives to going to family court?

Discussions over the kitchen table (or similar)

Whilst I would always recommend getting legal advice, there is absolutely nothing wrong with you and your ex-partner sitting down together around a table to discuss options, so long it is safe, constructive and you feel comfortable doing this. Of course, unless you are still living under the same roof, you may need to be mindful of Covid restrictions preventing such meetings!

Mediation

This involves you and your ex-partner having a number of meetings with a mediator either in person or via video link such as Zoom. The mediator is independent and impartial and will facilitate the discussions between you to ensure that you both have an opportunity to speak and to be heard and come to your own agreement. The process is voluntary but is a great way to seek to resolve issues as you retain complete control of the decision making process and are working together to seek an outcome.

Solicitor negotiation

This is generally where one or both of you instruct lawyers to negotiate on your behalf. The lawyer will advise you and negotiate with your ex-partner based upon your instructions. Depending on your case (and your lawyer) those negotiations may be in writing or by phone but could also involve meetings with the lawyers and clients present (again in person or remotely).

Collaborative Law

The collaborative law process is something that I would describe as a bit of a hybrid between mediation and solicitor negotiation. It involves both yourself and your ex-partner instructing lawyers who are trained in the process. Like mediation, it involves a number of meetings but your lawyer is with you the whole time and you all (lawyers included) commit to reaching an agreement outside of court.

Early Neutral Evaluation/ Private FDR

This is an option that you might use if you have been trying to reach an agreement using the above processes but have reached a deadlock. In essence it involves asking a third party specialist such as a barrister or senior solicitor to give their opinion on the case and what they think the outcome should be. 

It allows a dry run of some of the arguments that could be made at a hearing and to get a feel for how that may be received. Whilst the opinions are not binding, they encourage settlement unless the opinion is considered to be wildly far off what a court might order. The discretion that is integral to most family issues means that there is a risk that a judge could come to the same conclusion.

Arbitration

Family Law Arbitration is similar to Early Neutral Evaluation or a Private FDR except that rather than giving an opinion, the arbitrator makes a decision which you have agreed to be bound by. In this respect, Arbitrators are much like private Judges. Whilst there is a cost to appointing a Family Arbitrator, the process has a number of benefits over the court including; speed, availability, confidentiality and flexibility which overall can make it a cheaper and preferable option.

It is important to appreciate that many of these options do not operate in isolation and are flexible enough that they can work in combination. You could, for example, mediate some issues but use solicitors to negotiate to address problems with financial disclosure or more complex legal points. 

Even if you do need to issue an application at the court, ADR should not be abandoned as the court expects ongoing attempts to agree an outcome and parties can find themselves penalised in costs if they do not. Most recent judicial guidance published during the pandemic specifically encourages the use of ADR including private FDR’s and Arbitration.

Whatever you choose to do it needs to be the right option for you and whatever that may be, we are here to help. For a free initial chat about your options and how we can help you, I can be contacted on 01206 217305 or karen.johnson@birkettlong.co.uk. 

 

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