Fiona O'Sullivan discusses the options that are available to resolve a dispute relating to children without recourse to the court.
Welcome to Weightmans. I'm a consultant in our national team of family law solicitors. We're here to help you.
This is one of a series of podcasts that we have produced for parents to help them resolve disputes about their children on or after relationship breakdown.
Today, I want to consider what non-court-based options that there are. If you don't want to go to court, what are the options available to you?
It's essential to understand not only how your case might be resolved but how this can be achieved. There are many routes available to you. You can endeavour to negotiate arrangements directly with the other parent personally, using a trusted friend or family member or through the more formal means. A solicitor can also deal with the negotiations for you.
Family mediation may also assist in resolving matters without recourse to the court. Other methods of non-court dispute resolution are also available including collaborative family law and arbitration.
What is mediation?
Family law mediators are trained to help separated couples resolve disputes over issues faced by them, including financial settlements and arrangements for any children. A mediator is impartial and meets the parties together to assist in identifying those issues that are not yet agreed upon and helping to try and reach agreements.
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 the mediation sessions or to assist them in making informed decisions after a mediation meeting.
What is collaborative law?
Collaborative law may be suitable for more complex cases where the parties, together with their own legal advisers, engage in negotiation. Each party will instruct their own collaboratively-trained solicitor with everyone, that is clients and lawyers, signing an agreement committing to resolve issues without going to court. This, therefore, provides an incentive for an agreement to be reached.
Negotiations take place through a series of face-to-face roundtable meetings rather than through correspondence.
Arbitration is a process whereby the parties pay for and appoint a private judge to adjudicate their case. The arbitrator will decide their case in the same way that a judge would in court. However, arbitration procedures can move much more quickly and flexibly than through the court system. The arbitrator's decision is binding and confidential.
Arbitration can cover children matters as well as financial disputes, meaning complex cases can be settled in a matter of the weeks rather than months.
If one of the non-court-based options mentioned above is not engaged or is unsuccessful, the vast majority of family law solicitors will do what they can to help keep matters out of court, engaging use of roundtable meetings to help the clients broker a solution. To assess what options might be appropriate, you should seek expert family law advice to gather an appreciation of the full range of opportunities available to you.
What if you're able to agree the arrangements for the children but haven't issued court proceedings?
Of course it is entirely possible and to be encouraged. The legal framework and all the processes arising from that, court-based or otherwise, encourage parents to try to reach agreement in accordance with the concept of parental responsibility. We deal with parental responsibility in our earlier podcast.
It's important to emphasize that the 'no order' principle is enshrined in the Children Act 1989, meaning that a court order is only to be made if it is needed to meet the child's best interests. Court orders are not always necessary to reflect the agreements that have been reached but can be useful for certainty and can be obtained from the court by consent.
A mutual agreement has the best prospect of success and is likely to cause the least disruption to the children. Keeping the lines of communication open with the other parent and involving them in any decision-making process can often lead to an agreement that suits all concerns.
Thank you for listening to this podcast. If I or any of our my colleagues in Weightmans' family law team can help further, please do get in touch. You will find details at the end of this podcast.
When you need support with a family dispute, we will look to resolve it sensitively yet robustly through constructive communication. We will always help you to search for solutions which reduce conflict and costs, whether your case requires complex litigation or a non-court-based approach.