Alternative Dispute Resolution - Ending the Family Court Crisis

This year the focus of Resolution’s “Good Divorce Week” is on ending the crisis in the family court, with the first meaningful steps toward change in the system being taken this year. This is because in April 2022 “No Fault Divorce” was introduced, meaning there’s no longer a need for someone to be blamed for the breakdown of a marriage while allowing separating couples to apply for a divorce jointly.

While the number of cases in the family courts has increased in general, applications relating to Private Children Law and Financial Remedy disputes have decreased. One reason for this could be that more people are looking at Alternative Dispute Resolution (ADR) as a way to resolve their disputes.

With the family courts overwhelmed by the volume of cases it’s not surprising that people are opting for alternative methods. Especially as it allows for people to separate amicably and find resolutions that work for both parties.

What ADR process is right for me?

Arbitration

The separating couple work with an arbitrator who is a neutral and unbiased third party to provide a decision. Once a decision is agreed it’s final and will be legally binding. It's extremely rare for the court to overturn an arbitrator's judgement after an arbitration award has been rendered.

Couples who are separating may choose to arbitrate a variety of matters especially on matters relating to their children. Matters may include, care, custody, education and where they’ll live. When it comes to financial settlements, the two parties can ask that an arbitrator decides on a single issue or an entire settlement.

Arbitration may not be for everyone as the process requires both parties’ consent and agreement. As with most ADR processes, it’s voluntary and if both parties don’t agree, one party can’t be forced into it.

Collaborative Law

Collaborative law involves parties and their lawyers sitting down together and trying to work out an agreement together. The process can be used for both financial settlements and child arrangements for the future. Once an agreement is reached it’ll be drawn up into a binding court order or separation agreement.

If both parties can’t agree on a decision or discussions break down, they’ll need to appoint a new solicitor. Which is likely to motivate both parties to engage wholeheartedly in the process.

Early Neutral Evaluation & Private FDRs 

If parties decide to resolve a dispute through the process of Early Neutral Evaluation an expert is appointed (often a part-time judge, barrister or experienced arbitrator). They’ll then review the evidence and offer a judgment of how the case would likely result in court. This process can inspire an early settlement as appose to the larger costs and lengthier court proceedings. An indication can be given on a stand-alone issue or the entire dispute.

The Financial Dispute Resolution hearing, is part of the financial remedy proceedings, and is called a private FDR. In this instance, the judge (often a part-time judge or experienced barrister) again will give their thoughts on the likely outcome of the proceedings should the matter proceed to a final hearing. The hope is this then motivates both parties to settle earlier.

Advantages to this process include, flexibility of times and location as well as, the ability to pick who’ll be reviewing the case. This process is also much easier to reschedule compared to court proceedings should there be unexpected delays.  

Mediation 

Family mediation is one of the most popular methods of ADR. It involves an independent professional mediator who helps both parties negotiate an agreement. The mediator is a completely neutral party and cannot give the parties legal advice or pass judgement on their case.

Mediation often produces a better long-term result for families, reduces animosity and improves communication which is still required between separating couples. Parties can return to mediation if they’re seeking to review existing financial agreements or child arrangements after a change in circumstances.

Our specialist team of family solicitors has extensive experience of resolving disputes according to the particular aims and circumstances of our clients. For those interested in pursuing a resolution outside of court, our team, which includes accredited mediators and collaborative lawyers, can offer a wide variety of services. If you would like to speak to a member of our family team, please call 0370 1500 100 7550 or visit our website.