Court as the last resort – alternative dispute resolution in family law

During a divorce, the temptation can often be for parties to rush to court and seek a determination from a Judge, but this is not the only option.

Each Autumn, family law professionals committed to resolving disputes in a constructive way gather to discuss strategies and techniques in which they can assist their clients address their issues in the best possible way for their families. A national conference, hosted by Resolution, is currently taking place, with more events and seminars taking place across the regions over the coming weeks.

During a divorce or separation, with emotions often running high and disagreements at their height, the temptation can often be for parties to rush to court and seek a determination from a Judge, whether in relation to their children or finances. In some cases this is the right course of action to take, but it is by no means the only approach and there are other methods of dispute resolution (DR) that can keep disputes - and costs - to a minimum.

Perhaps the best-known form of DR is mediation. A mediator is impartial, and meets the parties together to assist them in identifying those issues that are not yet agreed upon and to help them to try and reach agreement.

Mediation is a flexible process which can involve the parties discussing matters directly with the mediator in the same room. Where this is not appropriate, the mediator can use ‘shuttle mediation’ to travel between the parties (who remain in different rooms) to continue the discussion. It is usually advisable for parties going through mediation to retain their own solicitors to provide independent advice following mediation sessions, to assist them in making informed decisions.

Another option is Collaborative Law. It may be suitable for a more complex case, where the parties, together with their own legal advisor, engage in negotiation. Each party will instruct their own collaboratively-trained solicitor with all (clients and lawyers) signing an agreement committing to resolve issues without going to court, therefore providing an incentive for an agreement to be reached. Negotiations take place through a series of face-to-face meetings.

Arbitration has been described as the “BUPA Option” in family law. It involves the parties appointing an arbitrator to decide their case in the same way that a judge would in court. However, arbitration proceedings can move much more quickly and flexibly than through the court system. The arbitrator’s decision is binding and confidential. Arbitration has recently been extended to cover children matters as well as financial disputes, enabling complex cases to be settled in a matter of weeks rather than months.

Finally, even if one of the DR options mentioned above is not engaged, the vast majority of family law solicitors will do what they can to keep matters out of court, engaging in the use of round table meetings to help clients broker a solution.

Expert advice from a family law solicitor is essential to ensure that parties understand not only how their case might be resolved, but how this can be achieved.

Matthew Taylor is a Solicitor in the family law team at Weightmans.

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