In a recent interview, I spoke about what I believe is a common misconception about solicitors – the idea that involving a lawyer in a family law dispute will inflame an already tense situation. The truth is, however, that an experienced family law solicitor understands how to de-escalate conflict and encourage all parties to resolve disputes constructively and outside of court.
As a member of Resolution, a Mediator, and a Collaborative Family Lawyer, I am committed to assisting my clients in resolving legal matters through alternative dispute resolution methods (ADR). ADR is not appropriate in all cases, for example, where there is domestic abuse or one party may be a narcissist. Most families, however, benefit from the speed, confidentiality, and reduced costs provided by ADR methods as opposed to formal litigation.
What are the disadvantages of settling disputes in the Family Court?
Most people know that going to court is expensive, however, few realise how stressful the process can be. Unlike ADR which tends to sway towards win/win solutions which are voluntarily reached between the parties, in court, a decision is made by a judge and one party usually ‘loses’ whilst the other ‘wins’.
Following years of budget cuts and the Coronavirus pandemic, family courts are overstretched and under-resourced, with judges provided with precious little time to fully understand the complexity of issues before them. Added to this is the push to make the Family Court more transparent, resulting in a loss of privacy for families.
Also, there are significant delays in the court system. A financial dispute from making the application to a final hearing can take up to two years. ADR is far quicker.
For those who wish to avoid going to court, there are several family law ADR options.
What are the alternative dispute resolution methods relating to family law?
The alternatives to resolving your family law dispute through formal litigation include:
- Mediation – a mediator works with the parties to help them come to a mutual agreement. The mediator cannot give legal advice but will facilitate discussion between the parties. Both parties will obtain any legal advice they need from their own lawyer during the process and they will usually instruct their own solicitor to formalise any agreement to make it legally binding. The process is private and, like all forms of ADR, voluntary..
- Collaborative law – each party instructs a solicitor trained in collaborative law and signs a participation contract. This commits all parties to resolve the dispute without involving the court, except to approve and formalise any agreement reached. Negotiations are conducted via a series of four-way meetings between the parties and their solicitors. If the collaborative law process fails to result in an agreement, the parties must terminate the retainer with their collaborative solicitor and instruct a new legal representative.
- Family law arbitration – is governed by the Institute of Family Law Arbitrators (IFLA). Parties must sign an IFLA agreement which binds the parties to arbitrate and states that they agree to abide by the IFLA FS Rules. Parties appoint an arbitrator who will make a final and binding decision . The process is confidential and provides more flexibility than formal litigation. It can also be used to resolve a discrete issue where there is an impasse.
- Private financial dispute resolution – also known as an early neutral evaluation (ENE). Parties appoint and pay for a ‘private judge’ who will be a family lawyer (often a former judge or senior barrister) to consider the evidence related to their financial dispute, including any offers of settlement by either party. The private judge will then provide guidance on how a family court judge might rule on the matter if it proceeds to court.
There also always remains traditional solicitor negotiation through correspondence with the option of round table meetings with the parties present.
All of the above ADR methods have advantages and disadvantages. Some can be used in conjunction with each other, All are less formal and less expensive than going to court. ADR allows you and the other party to the dispute to exert greater control over the outcome and reach a solution amicably which is best suited to your family’s needs.
Contact our Family Team
If you are affected by similar issues or would like to have a related discussion in confidence, please contact a member of the Family team direct or email email@example.com or call us direct on 020 7091 2869.
The above is accurate as at 6th June 2022. The information above may be subject to change during these ever-changing times.
The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis.