LEGAL
Surrey’s Premier Lifestyle Magazine
Alternative Dispute Resolution – what are the options?
Mundays solicitor Bethan Campbell looks at the alternatives to resolving family disputes other than through the courts.
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“The Court system is broken” is a phrase that is often heard in the family law world. There are a number of factors that have led us to this conclusion such as:
• Long waits for a hearing date which could delay proceedings
• The high costs of Court proceedings
• The Judge doesn’t always have time to read the papers fully for every hearing
• Court dates can be changed at the last minute resulting in wasted costs
• It is often seen as an adversarial and acrimonious environment
• A Judge will make a decision that no-one is happy with
• The Court procedure encourages parties to adopt a more rigid stance which can make it hard to find a compromise
• The press can potentially access and in some circumstances report the proceedings
What can you do when you have a dispute in your family, be it regarding who spends time with the children and when, or your divorce and the division of your financial assets that follow? Thankfully, there are alternative routes for separating couples that are able and willing to work together.
Mediation
The parties sign up to this voluntary process and appoint an independent mediator. The mediator will assist the parties to reach a settlement suitable for that family and confirm what is and is not possible from a legal perspective. However, the mediator cannot advise either party as to whether a settlement is fair as they must remain independent. This provides a forum where the parties can talk to one another and the pace is set by the parties determining how often they want the meetings.
The parties can and often do retain a separate solicitor to advise on the possible settlement in between mediation appointments.
It is also possible to have each party’s solicitor attend the mediation, if necessary, to provide advice on the terms of the settlement and/or provide support. A further option would be to have ‘shuttle mediation’ where the parties remain in separate rooms and the mediator goes between the two rooms. This can be useful if one party feels pressured by the other but wants to proceed with this route.
• Long waits for a hearing date which could delay proceedings
• The high costs of Court proceedings
• The Judge doesn’t always have time to read the papers fully for every hearing
• Court dates can be changed at the last minute resulting in wasted costs
• It is often seen as an adversarial and acrimonious environment
• A Judge will make a decision that no-one is happy with
• The Court procedure encourages parties to adopt a more rigid stance which can make it hard to find a compromise
• The press can potentially access and in some circumstances report the proceedings
What can you do when you have a dispute in your family, be it regarding who spends time with the children and when, or your divorce and the division of your financial assets that follow? Thankfully, there are alternative routes for separating couples that are able and willing to work together.
Mediation
The parties sign up to this voluntary process and appoint an independent mediator. The mediator will assist the parties to reach a settlement suitable for that family and confirm what is and is not possible from a legal perspective. However, the mediator cannot advise either party as to whether a settlement is fair as they must remain independent. This provides a forum where the parties can talk to one another and the pace is set by the parties determining how often they want the meetings.
The parties can and often do retain a separate solicitor to advise on the possible settlement in between mediation appointments.
It is also possible to have each party’s solicitor attend the mediation, if necessary, to provide advice on the terms of the settlement and/or provide support. A further option would be to have ‘shuttle mediation’ where the parties remain in separate rooms and the mediator goes between the two rooms. This can be useful if one party feels pressured by the other but wants to proceed with this route.
Collaborative
Both parties will retain their own solicitor, but instead of dealing with matters by lengthy correspondence, the majority of the matter will be conducted over the telephone, between the solicitors, or in meetings with all parties present. This reduces the opportunity for misunderstandings and gives a forum for the parties to discuss what is most important to them.
The process is open and honest meaning there are no tactics or trying to ‘win’. The parties sign up to resolving the issue rather than scoring points and are encouraged to work as a team throughout the process. As such, the negotiations will not be able to be shared with the Court in the event the process breaks down. This gives the participants the ability to be open in their discussions. The meetings are client-led with the solicitors giving guidance allowing the parties to work through solutions.
A key factor is that at the beginning of the process both parties write ‘anchor statements’ about what they want their life to look like after the divorce and are reminded of these throughout the process to ensure everyone remains focussed on the big picture. The parties are motivated to reach an agreement, as if the process fails then both parties must instruct a new solicitor. However, it is often a very cost effective and constructive process.
Arbitration
Instead of issuing proceedings in the Court, you can appoint an arbitrator to make a decision. The arbitrator is a specialist in the area of family law and will have time set aside to fully read and consider all of the papers in your matter before the arbitration. A decision made by an arbitrator is binding upon the parties in the same way as a Court judgement would be. The pace is set by the parties to suit them and the issues decided by the arbitrator can be wide (the whole dispute) or a very specific issue. This can be useful if you have come to an agreement on most areas, but a discrete issue is preventing settlement.
Private hearings
As the Court system becomes more stretched, parties are more frequently using the option of private court hearings where a Judge (usually an experienced family law practitioner, often a barrister or Judge) is chosen and paid privately. They are often used where the parties want to be able to set their own timetable and keep the proceedings confidential.
Of course, for some couples, the above may not work for a variety of reasons, for example, it may be that the other party is not honest. It is therefore important to understand that you will likely require some initial legal advice tailored to you as to what is possible, what your risks are in proceeding in a certain way, or to assist you to reach an agreement.
Both parties will retain their own solicitor, but instead of dealing with matters by lengthy correspondence, the majority of the matter will be conducted over the telephone, between the solicitors, or in meetings with all parties present. This reduces the opportunity for misunderstandings and gives a forum for the parties to discuss what is most important to them.
The process is open and honest meaning there are no tactics or trying to ‘win’. The parties sign up to resolving the issue rather than scoring points and are encouraged to work as a team throughout the process. As such, the negotiations will not be able to be shared with the Court in the event the process breaks down. This gives the participants the ability to be open in their discussions. The meetings are client-led with the solicitors giving guidance allowing the parties to work through solutions.
A key factor is that at the beginning of the process both parties write ‘anchor statements’ about what they want their life to look like after the divorce and are reminded of these throughout the process to ensure everyone remains focussed on the big picture. The parties are motivated to reach an agreement, as if the process fails then both parties must instruct a new solicitor. However, it is often a very cost effective and constructive process.
Arbitration
Instead of issuing proceedings in the Court, you can appoint an arbitrator to make a decision. The arbitrator is a specialist in the area of family law and will have time set aside to fully read and consider all of the papers in your matter before the arbitration. A decision made by an arbitrator is binding upon the parties in the same way as a Court judgement would be. The pace is set by the parties to suit them and the issues decided by the arbitrator can be wide (the whole dispute) or a very specific issue. This can be useful if you have come to an agreement on most areas, but a discrete issue is preventing settlement.
Private hearings
As the Court system becomes more stretched, parties are more frequently using the option of private court hearings where a Judge (usually an experienced family law practitioner, often a barrister or Judge) is chosen and paid privately. They are often used where the parties want to be able to set their own timetable and keep the proceedings confidential.
Of course, for some couples, the above may not work for a variety of reasons, for example, it may be that the other party is not honest. It is therefore important to understand that you will likely require some initial legal advice tailored to you as to what is possible, what your risks are in proceeding in a certain way, or to assist you to reach an agreement.
Bethan Campbell
is a solicitor in Mundays’ family department. She practices in all areas of family law, including divorce and associated financial disputes, private children matters, cohabitation and nuptial contracts. Bethan is passionate about finding practical solutions appropriate for individual families in the most cost-effective way.Bethan can be contacted on +44 (0)1932 590589 bethan.campbell@mundays.co.uk
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Mundays LLPCedar House, 78 Portsmouth Road, Cobham KT11 1AN
Telephone: 01932 590500
Website: www.mundays.co.uk
The contents of this article are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this update. © Mundays LLP 2018.