Methods of alternative dispute resolution in Family Law
All areas of law are different and have their challenges. In Family Law strictly, we are categorised as a contentious area, in the sense that we cannot act for both parties and there is scope for all manner of conflict and litigation.
However, from a moral perspective, and if we are doing our jobs well, where appropriate we should be trying to calm the waters, rather than fan the flames.
Where people need Family Law help, they are usually experiencing some very strong emotions. The people involved have had close relationships with each other and feelings can run very high. Often there are children involved and it is important, where possible, that the parties can have some form of civil relationship after the dust has settled. One day they may both want to sit at the top table of a wedding or celebrate the birth of grandchildren or other family events. It is very difficult for children to feel that they cannot talk about one parent without the other parent making snarky comments or making them feel disloyal. In relationships where there are no children, it is still easier for people to be able to move forward if the whole divorce/separation/financial division has not been an acrimonious nightmare.
It takes two. Sometimes our clients have suffered domestic abuse or might be the abuser; in those situations we won’t usually be trying to open direct lines of communication between the parties.
There are a variety of methods of alternative dispute resolution available in Family Law, with new ways added in recent years, but not everyone is familiar with them all. They include:
Mediation – this has been around for many years and we have a trained mediator in the team. This is where the mediator facilitates discussions and negotiations between the parties to reach an agreement. With a solicitor mediator they can also give neutral legal advice and information.
Collaborative Law – we have collaborative solicitors in the team. This is where both parties commit not to file a court application using their current solicitors and round table meetings take place with the aim of reaching settlement.
Arbitration – the parties agree for their case to be put before an arbitrator who will decide the outcome, without going to court, but the outcome will be binding on them.
Neutral evaluation – This is where a person, often an experienced barrister, is paid to give an evaluation of what the outcome might be if the case were litigated. This can be very useful, especially if one party has unrealistic views.
Private FDRs – Instead of a Financial Dispute Resolution hearing at court, which is usually the second hearing in a court financial remedies application, where the intention is for the parties to negotiate with judicial input, the parties pay for a private FDR, often before an experienced barrister. This barrister will have much more time available to assist the parties to settle by giving a neutral evaluation and input, making it less rushed and in a more pleasant venue than court.
All of the above can be used for financial remedy cases and both mediation and arbitration are also suitable for some child related disputes.
Not all these methods will always be cheaper than a court application, though they usually are. But in terms of the cost to ongoing relations, they invariably do the least damage. There is much to be said for parties retaining some input in how their issues are resolved, without handing over the entire decision to a Judge who might only meet them once.
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