The crisis within the Family Court and Non-Court alternatives

Today marks the start of Resolution’s Good Divorce Week amidst what has become a growing crisis within the Family Court system which is closer than ever to breaking point.

The latest statistics show there are more new cases being started than resolved within the Family Court which will inevitably add to the delay that many families caught up in the system are having to endure. These delays cause significant and increased stress to those families and couples who are seeking resolution through the courts for serious issues, particularly in cases involving children or challenging divorces.

Many have called upon the government to increase the court capacity, but regardless of whether there will be an appetite to fund those plans amidst national austerity, many feel that a more proactive rather than reactive response is required to stem the growing numbers of litigants.

Court is not an easy option when it comes to resolving family disputes and the cost, both financial and emotional, can be significant if not overwhelming. However, there is a sophisticated range of dispute resolution options available that may be far more appropriate and provide far swifter solutions.

Mediation

Mediation is a confidential process in which an impartial, independent mediator works with the parties to explore a pathway to agreement. The parties have full control over the decision-making process with the mediator providing information and guidance to support them in evaluating what makes the most sense to them. The parties have the freedom to explore all the options as the confidentiality of mediation means that readiness to consider a particular option cannot later be held against a party in court.

The process is conducted through a series of fixed-cost face-to-face meetings. Each party first attends their own individual assessment meeting which lasts about an hour. After that, they attend the sessions together. The meetings are conducted with the parties in the same room wherever possible, but there is also the option for the parties to have their own separate rooms and for the mediator to 'shuttle' between them or alternatively for the sessions to take place online.

The cost of meetings is shared equally between the parties, although alternative arrangements can be agreed.

At the end of the mediation process, the mediator produces a 'Memorandum of Understanding' setting out the proposals the parties suggest should form part of an agreement. It is always recommended that independent legal advice is sought on these proposals before putting them into a formal agreement.

Collaborative Law

The collaborative process involves each person appointing their own collaboratively trained lawyer. Everyone then meets together to work things out face-to-face. The process also allows the parties to work with other professionals such as financial advisors, family consultants, child specialists or an accountant.

All those involved will collectively make up the collaborative team bound by a commitment to work towards achieving the best resolution without going to court.

Private FDR — trial/negotiations

A Financial Dispute Resolution hearing, is where the parties pay for an experienced lawyer or retired or part time judge to give an early ‘neutral evaluation’ of the likely outcome if the case were to proceed to a final hearing.

The aim of the evaluation is to provide the parties with an understanding of what a court might be likely to order if the case went to trial to assist them with their negotiations and in finding a solution for themselves.

This is most often used where there are significant assets or a particular need for privacy and can save both times and costs.

Arbitration

In family arbitration the parties jointly appoint an arbitrator to make final and binding decisions between them on any financial and property disputes or some child-related issues arising from separation.

The process can enable disputes to be resolved quickly, confidentially and in a more flexible and less formal setting than a courtroom.

Once appointed, the arbitrator will deal with each stage of the case from start to finish, subject to how the parties wish the proceedings to be run. This therefore enables the parties to choose for example, the venue, whether to meet face to face or through writing only and whether to use the arbitrator for the whole process or just parts of it.