Alternative dispute resolution in family law
There are many benefits to pursuing alternative dispute resolution rather than court proceedings.
The use of non-court options, or Alternative Dispute Resolution (ADR), has risen over recent years, as the Government, legal profession and those participating in family disputes have recognised the benefits of using ADR rather than pursuing the traditional court route.
What is alternative dispute resolution?
ADR stands for alternative dispute resolution, or non-court resolution, and is used in many areas of the law, including for family matters. ADR can take lots of different forms with the most popular being mediation, collaborative law and arbitration.
The rise in Alternative Dispute Resolution
Allowing the parties to choose which option is right for them and enabling them to tailor a bespoke process to their situation, has become the path of choice for many separating couples.
Although many during the pandemic have turned to ADR due to necessity as the already overburdened court system is even more so, we anticipate that the use of non-court options will continue to rise.
Types of Alternative Dispute Resolution
It is important to be aware that court is not the only option. There are many alternatives that allow parties to settle matters together without the court having to impose any decisions.
Below is a summary of the main options, and this flowchart explains more about each option and how they sit within the family law process:
- DIY settlements — Many separating couples who still have a good working relationship could reach a ‘do it yourself’ settlement, i.e., an agreement between themselves, that could then be converted into a legal document.
- Solicitor-led negotiation — A solicitor can be appointed on the parties’ behalf to correspond and negotiate with the other side. They can be the parties’ voice during negotiations and discussions to explore whether an agreed approach can be reached on behalf of the parties.
- Mediation — Mediation is a popular method for many separating couples, as with support from a neutral mediator, it allows both parties to speak openly and freely with a view to exploring and reaching an agreement. The mediator encourages a positive and open debate with the aim of negotiating a settlement which can be converted into a legal agreement.
- Collaborative practice — This involves both parties appointing their own collaboratively trained solicitors. The parties will be encouraged to resolve any issues they have in a series of ‘four-way meetings’, with the anticipation that an agreement can be reached which is then converted into a legal document. Parties and their solicitors sign an agreement at the outset confirming they will not apply to the court which provides an incentive to all to work towards a settlement. However, if an agreement cannot be reached, they can opt-out and apply to the court but only with a change of legal representatives.
- Arbitration — Arbitration allows the parties to appoint a private judge to adjudicate upon their case. This process allows for more flexibility, is quicker than going to court and also allows parties to choose their own arbitrator/judge. The process can be adapted to suit the needs of the parties. Both parties will put their arguments to the arbitrator who will reach a decision which will then be binding and subsequently recorded in a court order.
- Private Financial Dispute Resolution (“FDR”) — A FDR appointment is a judge-led negotiation hearing, used to try and reach a settlement, which takes place midpoint in a financial remedy court application. The hearing is ‘without prejudice’ and the judge cannot impose a settlement on the parties but will offer guidance to the parties and an indication as to the potential settlements that could be imposed if it were to proceed to a final hearing. The parties will not give evidence at the FDR. It is anticipated that the parties will use the time to focus on negotiating a settlement.
A private FDR is an extension of this idea when, to expedite matters, parties elect to privately fund and choose their judge who will have more time to listen to and consider the case than in a state-funded court process. This provides the parties with the confidence that they will have expertise in the relevant areas.
Mediation Voucher Scheme
In March 2021, the Government introduced a time-limited mediation voucher scheme, designed to support parties who may be able to resolve their family law disputes outside of court.
The Government set up the scheme in response to COVID-19 to support recovery in the family court and to encourage more people to consider mediation as a means of resolving their disputes, where appropriate. To support this, a financial contribution of up to £500 towards the costs of mediation will be provided, if eligible.
Only mediators authorised by the Family Mediation Council are taking part in the voucher scheme.
It is not available to all separating or separated couples. If a dispute concerns a child, a voucher may be available, even if there are also financial issues to resolve, but a solely financial dispute will not qualify.
As of writing (November 2021), this scheme is still in place and vouchers continue to be available. Roughly 130 vouchers are used each week showing the popularity of the scheme among those who may ordinarily seek court assistance.
Mediation Information Assessment Meetings (“MIAM”)
Before making a court application for certain types of family law orders, parties are required to attend a MIAM unless they have a valid exemption.
At a MIAM, the mediator provides information about the mediation process and will assess whether mediation is suitable taking into account the particular circumstances of the case. At the MIAM, the mediator will also assess whether the parties are eligible for the voucher scheme.
Following the legal aid cuts in 2013, the Government are hoping this will encourage more separating couples to attend mediation who normally would not have had access to this or who would otherwise have seen court as the only way to resolve their disputes.
Advantages of alternative dispute resolution
There are many benefits to pursuing ADR rather than court proceedings and a number of these are set out below.
Issuing a claim in the family court is slow. From April to June 2021, the average time for a Children Act case to come to completion from issue was 41 weeks and over 12,000 financial remedy applications were issued in the same time period.
Once a claim is in the court, you must work to their timetable unless you manage to settle the issue out of court before your scheduled hearings.
By using ADR instead, you are not tied to any external, court–led, timetables and can set your own. If you have an urgent issue you would like to get sorted straight away, creating a DIY settlement, using solicitor-led negotiation, mediation or arbitration, can cut out a large portion of the waiting time that is common within the court system.
It is worth remembering that not all family law issues are acrimonious, and they needn’t become so if the parties are willing to work together.
Court proceedings can add an element of adversarial friction to disputes and so if court can be avoided, it is recommended to do so. As mentioned above, there is no reason you can’t decide on a settlement between yourselves (but do make sure you get it converted into a proper legal document). If you do wish to have a more formal or supported approach, mediation, collaborative law and solicitor-led negotiation can be positive arenas in which to voice your proposals to the other party and work constructively to reach an agreement that benefits everyone.
Choosing your own 'decision maker'/expert
Non-court options allow the parties to choose who they wish to decide their case, in the event that agreement cannot be secured. For example, if your case involves a complex business or pension structure, you can select an expert in that field. If your case involves a complex family structure, you can choose an expert with experience in dealing with such cases that perhaps fall outside of the perceived ‘norm’.
As the court moves towards greater transparency and published judgments, non-court options continue to provide parties with anonymity and confidentiality.
Choosing a process that suits 'you' and your situation
Family structures take many forms. You may be long term unmarried cohabitees, lone parents, civil partners, LGBTQ+ families who have used surrogates and families where one or more parents is trans; to name but a few. The National Centre for Social Research has found that the public is moving towards a more tolerant way of thinking towards these new family structures, but it is no secret that the judiciary in the UK is lacking diversity; it is still the case that only 32% of judges are women, only 8% identify as BAME and 40% of judges are aged 60 or over (Diversity of the Judiciary: 2020 statistics).
Although it is the role of the judge to consider the evidence before them and to approach the case without bias, if you are someone who may not feel comfortable in this scenario and feel that a judge may not understand the intricacies and real-life effects of your issue, arbitration or mediation may be preferable. Both options allow for a qualified third party to be chosen by the parties themselves, meaning a professional with relevant expertise could be selected, providing a safe space that will hopefully inspire cooperation and agreement.
If you would like to learn more about non-court options, please contact our family mediation lawyers.