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Non-court dispute resolution for families — what are the options?

Arbitration allows the parties to appoint a private judge to adjudicate upon their case.

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. Non-court options allow for a great deal of flexibility, meaning it has been very well placed to help families, especially during the COVID-19 pandemic.

The rise in ADR

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.

What non-court options are there?

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 to negotiate a settlement which can be converted into a legal agreement.
  • Collaborative practise — 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 court which provides 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 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.

If you would like to learn more about non-court options, please contact our family mediation lawyers.

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