This week is Resolution’s third Family Dispute Resolution Week. It’s an awareness-raising campaign which aims to highlight the alternatives to court for separating couples and their families. There are events going on around the country to help spread the word that there are alternatives to courtroom battles for separating couples, and there’s been plenty of media coverage already on the surveys commissioned by Resolution about the effects of divorce on kids and the working economy (see e.g. here, here and here). As you know, at CFLP we are keen on using the right horse for the course, and in many circumstances, that horse isn’t the court. We are mediators, collaborative lawyers, negotiators and supporters of those who try to work towards decisions without judicial involvement (except by consent).
To show our support for the family Dispute Resolution Week, which you can follow on Twitter via @ResFamilyLaw using #abetterway, here’s a handy reminder of the options if you would like to resolve matters without contested proceedings in court.
Mediation is where the couple meet with an experienced third party mediator and go through a process that helps you to talk and make decisions which you can both tolerate, which form the basis of an agreement between you which can be turned into a binding court order by consent. Earlier this month the Ministry of Justice announced that where one party to a family dispute is legally aided, the government will now fund both parties’ attendance at one session of mediation with a legal aid qualified mediator. Traditionally, mediation has not been a process which has involved lawyers, but lawyer assisted mediation is now becoming a more accepted option. Here, lawyers attend the mediation sessions with their clients, in order to advise on the spot and help their clients use the process to reach a settlement with the benefit of advice. Some clients prefer this level of support; others attend mediation without their lawyers, taking advice between sessions. The process is flexible.
The courts are supportive of mediation, and whilst they cannot compel couples to attend and engage in mediation they have used what mechanisms are at their disposal to encourage couples to use it to sort out their differences. In one case where an agreement to mediate had been reneged upon, the case was adjourned to ‘allow’ the couple to try again. In another, where one party was found to have been unreasonable in relation to mediation, costs penalties were applied against her. This is an interesting and fast-moving area of the law.
Arbitration is where you choose a specially-trained and experienced family law arbitrator to make a binding decision about specific matters on which you cannot agree, or on the whole of your case. The process has some similarities to a judicial process in that the arbitrator will make a decision after hearing arguments from both parties, and that decision will be binding unless later unravelled by a court for good reason. Arbitration was given a judicial thumbs up earlier this year by the President of the Family Division, when he said that where parties have voluntarily bound themselves to an arbitrator’s award by signing a contract to do so, then the court should not interfere with the award and subsequent consent order, except in extreme circumstances. This was perhaps the court approval that arbitration needed really to be taken seriously as a dispute resolution mechanism.
Collaborative Law is where each of you engages a specially-trained lawyer, and decisions about the future are made in a series of communal meetings under an agreement which stipulates that you will not use the court, except to send in paperwork for the final binding order. The President has made it clear that an agreement reached through collaborative law should be given a streamlined process of judicial approval. The collaborative process is flexible and holistic, and seeks to find solutions that work in the best way for all members of the family.
A further option which has joined the ADR stable quite recently is known as “early neutral evaluation” or “private FDR” – both terms being a form of private judging. Some barristers offer a private version of the court-based FDR in financial proceedings, where they take the role of the judge to provide an objective view of what sort of outcome would be fair. This can help promote settlement or at least reduce the issues between the couple. It is generally not binding (unlike arbitration) but can be a useful tool to indicate at an early stage what the likely outcome of litigating would be. It is also possible to use a similar process for disputes about arrangements for children: in fact, in a recent case, the parents signed up in advance to abide by the evaluator’s decision.
And then of course, there is good old-fashioned negotiation. A good lawyer will discuss with you your aims and the options for reaching a resolution, so they can understand your priorities and work on your behalf to achieve what you consider to be a decent resolution. We hope that the awareness raising going on this week will encourage more people to think about non-court based ways of resolving things. That’s not to say court proceedings are not necessary in some cases – they certainly are – but for many separating or divorcing couples, issues can be narrowed or sorted out without that stress and expense, and with greater privacy. Knowing your options can give you the power to choose the right horse for the course you and your family happen to be on.
If you would like to talk through any of the dispute resolution approaches mentioned above, do give Gail, Adam, Sue, Simon or Tricia a call on 01223 443333.