Alternative dispute resolution: a different route

One question on everyone’s mind when going through a divorce, separation or other family dispute, is how much resolving matters is going to cost and whether they need to go to court. The truth is that you do not always need to go to court; there are a number of other options available to you, some of which may be perfectly suited to your situation.

Alternative Dispute Resolution Options

Here are some of the alternative dispute resolution options to consider, which may provide a quicker and more satisfactory settlement, with a lower overall cost:

Mediation

Mediation is a form of alternative dispute resolution (ADR) which many are already aware of. However, it is often incorrectly considered to be a pre-cursor to court proceedings. That is not necessarily the case, and can prove to be an incredibly useful process on its own.

Mediation allows parties to talk through their issues in the presence of a neutral and independent third party who has specialist training. The mediation sessions take place in a confidential setting, and matters discussed in relation to finances cannot generally be referred to later on in court. It is therefore a useful environment within which you and your partner can speak freely, in an attempt to resolve matters.

Here are some pros and cons for you to consider:

Pros

• Mediation is often a cheaper and quicker process than court proceedings.
• Many mediators are also solicitors and are therefore able to provide legal information (not advice) to the parties. Our solicitor mediators are Neil Davies, Sarah Passemard and Danielle Taylor.
• Discussions are guided by the mediator so all relevant issues are dealt with. The mediator can also “stress test” any suggestions to ensure that they would work in real life.
• The pace of mediation is controlled by the parties and sessions are arranged at a mutually convenient time. You can have as many or as little sessions as you and the mediator think are needed.
• Mediation sessions can take place remotely by video, in-person, or on a hybrid basis.
• Where appropriate, mediation can be “child inclusive” which allows the parties’ children to participate in the sessions and give their views/opinions.
• Any decision reached in mediation is not binding until such time the parties have taken legal advice in relation to the same.
• Those who cannot reach a resolution in mediation can move on to court proceedings or other forms of ADR safe in the knowledge that matters discussed in relation to finances are confidential and cannot be referred to elsewhere. This does not apply to discussions in relation to children.

Cons

• It is often assumed that a mediator will advise both parties. A solicitor mediator will not offer legal advice but may provide legal information. The parties can each have a solicitor involved either throughout the process, or in the background to provide them with advice as and when required.
• Mediation is not generally suitable where there is a power imbalance between the parties or there are domestic violence issues. Shuttle mediation may however be an option in those circumstances, as it allows each party to be in/on separate rooms/screens and the mediator can then go between them.

For further information on mediation, and whether it is suitable for you, please read our blog “Is family mediation right for me?”

Arbitration

Arbitration is a form of binding alternative dispute resolution which allows parties to employ a fair and impartial arbitrator to determine the issues in dispute.

An arbitrator is often an experienced barrister who sits part-time as a judge in the family courts. The best way to think of an arbitrator is a “hired judge”, who will dedicate their time to considering the issues in dispute, and provide a binding decision (an award) as to how those issues should be resolved.

Arbitration is effectively a streamlined private version of court proceedings, and you and your partner (or ex-partner) must sign up to be bound by the arbitrator’s decision at the outset. This can therefore be significantly quicker and more cost-effective than proceeding via the court system.

Here are some pros and cons for you to consider:

Pros

• The parties choose who they would like to be appointed as their arbitrator, having considered the known experience and background. In the court process, parties will have no choice as to which judge is allocated to their case.
• The chosen arbitrator will be able to dedicate much more time to the case, and will be able to give more in-depth consideration to the facts and evidence presented to them. In the court process, judges are often overworked and have large caseloads which limits the time they can spend on each case.
• The chosen arbitrator must provide a written decision on any case within a reasonable timeframe, giving reasons for their decision.
• Each party can be advised by a separate solicitor in the background and represented by a barrister during the course of the arbitration.
• Arbitration is often a more cost-effective method of resolving matters than proceeding via the court system; it is quicker and produces a binding decision within a reasonable timeframe.
• Arbitration can take place remotely, in-person or in a hybrid manner.

Cons

• Once the parties have formally agreed to enter into arbitration, there are limited circumstances in which they can terminate that arbitration.
• The outcome of the arbitrator is binding, and there are very limited circumstances in which the decision can be appealed. This is however not dissimilar to the decision made by a judge at a final hearing via the court system.
• Arbitration is not suited to every case and it is not possible to appoint an arbitrator to deal with matters such as insolvency, recognition of foreign marriages etc.

Collaborative law

The collaborative law process encourages disputing parties to try and resolve their issues in a four-person setting; the parties and their respective collaboratively trained solicitors take a ‘round table’ approach to discussions and negotiations.

In the collaborate process, the parties commit to resolving matters out of court and sign up to an agreement which stipulates that if the process breaks down, they must each seek new instruction and effectively start again. This encourages the parties to really commit to trying to resolve matters.

Our collaboratively trained solicitors are Frank Prior, Huw Miles, Lisa Bray, Neil Davies, Heather Souter, Sarah Passemard and Rachel Osgood.

Here are some pros and cons for you to consider:

Pros

• The process takes significantly less time than the traditional court process and is generally less expensive.
• The parties have control over the process in terms of venue, frequency of meetings, timing, and issues discussed.
• The parties are motivated to settle as if they do not do so, they will each need to appoint new solicitors to represent them.
• Collaborative meetings take place in a private, confidential forum where you can explore settlement options openly with advice from solicitors.
• Often encourages a better ongoing relationship between separating parties than adversarial litigation. This is often beneficial in circumstances where there are children who will benefit from a peaceable relationship between their parents post-separation.
• Nothing is hidden from either party as advice is given during the course of the meetings and not behind the scenes. Each party can therefore develop a degree of trust in the other person and their solicitor.
• Questions can be asked and answered quickly, and unclear points can be explained so there is less room for misunderstanding between the parties and their solicitors.
• Lengthy or seemingly aggressive correspondence between the parties or their solicitors is removed as much of the discussions take place in the group setting.

Cons

• The collaborative law process is not suitable where there has been domestic violence or where one party cannot or will not be represented by a collaboratively trained solicitor.
• If the collaborative process breaks down, both parties must obtain new solicitors unless an agreement is reached to arbitrate thereafter.

For further information on collaborative law and whether it is suitable for you, please read our blog “What is collaborative law and how is it different to family mediation?”

Early neutral evaluation

Early neutral evaluation is a form of alternative dispute resolution which allows the instruction of an independent and impartial evaluator to give the parties an assessment as to the merits of their case either as a whole or on specific points.

The aim of this process is to provide the parties with an objective and realistic view of the strengths and weaknesses of their respective cases, to assist with negotiations and narrow the issues in dispute between them.

Pros

• This process can be helpful where there are certain sticking points for the parties or where the parties are so far apart on specific points; it helps to narrow the issues for the purposes of negotiation.
• This process can be used alongside other forms of alternative dispute resolution, direct negotiations or negotiations via solicitors.
• This process can help to limit legal costs and prevent the parties spending too long going back and forth on a specific point for too long.

Cons

The outcome of an early neutral evaluation is not binding and funds can therefore sometimes be spent on obtaining an independent view which one party then chooses to ignore because it doesn’t suit them.

Solicitor-led negotiation

Solicitor-led negotiation can take place at any point throughout a case and is frequently used alongside other forms of dispute resolution, including court proceedings. It involves the parties attempting to reach an agreement on matters between their respective solicitors.

Here are some pros and cons for you to consider:

Pros

• Each party receives legal advice from their respective solicitor, with the aim being to put forward an offer for settlement in writing to the other party.
• Correspondence can take place on a without prejudice basis in financial matters, meaning that parties can make offers freely and without fear that words will be later used against them in court if out-of-court negotiations fail.

Cons

• There is no timeframe, meaning that matters can be delayed by one or both parties. This can cause additional stress and cost if left to go on for too long.
• Solicitor negotiations are not for every case as some require a more structured process to achieve the best results.

At Paris Smith, all of our solicitors have signed up to be members of Resolution, which is a community of solicitors who are dedicated to resolving disputes in a non-confrontational way. This is the best approach to take with matters concerning family, and is more conducive to an early settlement.

If you have a family law issue and would like to consider one of the above options as a form of resolution, or would like some advice, please do contact a member of our Family team.