A guide to resolving family disputes outside the court room

Joanne Clark of LA Law gives a guide to resolving family disputes outside the court room

ADR1It is a widely misconceived assumption that family law disputes always end up in the court room. Whilst litigation through the courts is one way of achieving a solution, there are also a number of alternative forms of dispute resolution which can provide a more informal and cost-effective alternative to the traditional court process.

The different forms of dispute resolution can be divided into two main categories; those which involve a third party determining the dispute who, in the absence of agreement, will impose a decision upon the parties, and those which involve a third party facilitator who is not able to impose a decision and whose role it simply is to aid negotiations.

Which form of dispute resolution is likely to be best will much depend upon the circumstances of the particular case in hand. We set out below a broad summary of the main forms of alternative dispute resolution and what they involve.

Arbitration

Arbitration, like the courts, is a process which results in a binding decision being made. Arbitrations can be used in a family context to resolve financial or property disputes arising from divorce/separation, the breakdown of civil partnerships, and co-habitation disputes.

Usually a sole arbitrator will be appointed by agreement between the parties, but if the parties cannot agree then the Institute of Family Law Arbitrators (IFLA) will nominate a suitable arbitrator to hear the case.

Once the matter has been heard, the arbitrator must make his/her award within a reasonable time after proceedings have been concluded. The award must be in writing and state the reasons for his/her decision. In entering into arbitration, the parties agree to be bound by the award. Whilst the arbitral award is intended to be final, most parties will also obtain a court order to mirror and confirm the terms of the award as this ensures that the award can be enforced.

The general rule about the costs of proceedings is that the parties will be ordered to share the costs of the arbitration. Otherwise, there is usually no order as to costs although this rule is subject to the parties’ agreement.

One of the main advantages of arbitration is that the speed of resolution is often quicker than the court process. Arbitration is also more flexible than the court as the parties are given more opportunity to shape the process in which their case will be heard. And like the court process, Arbitration is completely confidential. The increased speed in which matters can be dealt with means that Arbitration has the potential of substantial costs savings.

Collaborative Law

Collaborative law is a form of dispute resolution where specially trained lawyers acting for each party resolve cases through a series of roundADR5 table meetings. This process is a voluntary and confidential method of resolving disputes. The parties are required to each sign up to a participation agreement which commits the parties to resolving their dispute without involving the court (save as to approve and formalise any agreement reached).

The process entails a series of without prejudice negotiations which are conducted through four-way meetings between the parties and their collaboratively trained lawyers. This process encourages a much more informal and relaxed approach towards dispute resolution than that which is experienced through the court process. The parties are able to retain control of the process, including how often and where meetings will be held, and are also able to retain control over whether or not to settle the dispute and on what terms. In contrast, the court procedure provides the parties with little control over the process and ultimately, if settlement cannot be reached along the way, enforces a binding decision upon the parties.

Collaborative law can be used to resolve any family or relationship-related issue. It is, however, most commonly used to deal with financial disputes resulting from divorce or separation.

The collaborative process seeks to promote a better on-going relationship between the parties rather than the adversarial and often damaging approach which is taken in litigation. It also often takes significantly less time than the traditional court process to resolve disputes and is generally less expensive.

Mediation

MADR6ediation provides a flexible, voluntary and confidential form of alternative dispute resolution in which a neutral third party assists the parties to work towards a negotiated settlement.

The mediator does not have any authority to impose a binding decision on the parties which means that the parties retain ultimate control of the decision to settle and the terms on which settlement is reached.

The mediator works as a diplomat, facilitating communication and discussion between the parties by identifying potential solutions to the issues in dispute. It is important for the parties to recognise that the mediator is not appointed by the parties as a legal adviser and so, whilst the mediator can provide information to both parties during the process in order to facilitate discussion, the role of the mediator is not to provide legal advice.

In contrast to the traditional court process where a judge is allocated to a case by the court, when embarking on the process of mediation, the parties have the freedom to appoint a mediator of their choice.

It is common for parties to be referred to mediation by their lawyers if, after an initial consideration of the issues, mediation has been identified as a suitable alternative to issuing court proceedings. Once mediation is underway, it is usual for the parties’ lawyers to continue to provide input and advice to their clients outside of the mediation process. Whilst mediation does not exclude the involvement of lawyers, it is usual for the parties to attend family mediation sessions without their lawyers present.

The parties will be asked to sign up to a mediation agreement which confirms the parties’ willingness to engage in mediation as a means of resolving their dispute. It also confirms that the mediation sessions will be conducted on a confidential and privileged basis, i.e. the content of the discussions cannot later be referred to in any other proceedings.

As the timetabling of mediation sessions are not dependant on overburdened court resources, mediation is often a much quicker dispute resolution process compared to litigation. Also, because the parties tend to share the cost of the mediator between them, mediation is often a much cheaper alternative than embarking on court proceedings.

How we can help

ADR4At Lester Aldridge, our team of family lawyers are experienced in resolving disputes through alternative methods. Jane Porter, head of the Family Team, is a trained mediator and an experienced collaborative lawyer who encourages clients to explore alternative options of dispute resolution where appropriate. We also have a further two trained mediators within our team.

If you would like any further information about alternative forms of dispute resolution in a family context, or further information on the services that the Family Team at Lester Aldridge can offer, please contact the Family Team on 01202 786104.