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Good Divorce Week – Alternatives to Court

Posted: 29/11/2022


The focus of Good Divorce Week 2022 is to highlight the crisis in the family courts, which are suffering huge delays, and to raise awareness of the alternative ways in which families can resolve their disputes away from the court forum. The initiative is spearheaded by Resolution, the national association of family lawyers who believe in working with families and individuals to resolve issues arising from relationship breakdown in a constructive and non-confrontational way.

At Penningtons Manches Cooper, we are committed to a solutions-based approach to family law issues and believe strongly in the importance of early legal advice, including making our clients aware of all the options which may be available to them in addition to court proceedings.

The aim of dispute resolution is to provide the best possible chance for you to finalise your financial and other arrangements as quickly, amicably and cost effectively as possible without going to court. There are a variety of tools that you and your former partner can use to resolve those issues. These include:

  • mediation
  • collaborative law
  • voluntary negotiations with the help of your solicitors
  • early Neutral Evaluation and Private FDRs
  • arbitration

Not all of the available tools will necessarily suit your circumstances. You may decide to use one tool to try to resolve all issues between you and your former partner, or you may decide to use a combination. For example, you could attend mediation for some areas and need the assistance of a judge or arbitrator to resolve other issues.

Mediation

In mediation a trained mediator speaks to you and your former partner separately at first, then aims to get you around a table to talk about what arrangements will be made for the future. Mediation can be used to work out financial matters or arrangements for children and any other practical decisions that need to be addressed. It is a voluntary and confidential process that focuses very much on the future, rather than the past. Further information about mediation can be found here and here.

Collaborative Law

Collaborative law is a formal process whereby lawyers and the parties work together in a series of round the table meetings involving you, your former partner and their solicitors to sort things out. The aim is to achieve a fair resolution of the issues for everyone involved face-to-face rather than through an exchange of correspondence, and for those involved to work in a non-positional, non-confrontational way. Both solicitors need to be specially trained collaborative lawyers. A helpful article on collaborative law can be found here.

Voluntary Negotiations

This is the process whereby you instruct your solicitor to enter into negotiations with your former partner, either directly if they are not legally represented, or through their solicitor if they are receiving legal advice. It can be used to address any issues between you including exchanging full and frank financial disclosure and reaching an overall agreement on finances or children matters.

As with mediation and collaborative law, any financial agreement reached should be made into a consent order and approved by the court in order to be legally binding and enforceable in the future. Without this crucial last step, any agreement reached can be re-visited by either party in the future as financial claims will remain open.

Entering into informal negotiations in this way will not work for everyone. Sometimes, the other party is just not willing to engage properly in the process meaning that little progress is made in any reasonable timeframe. It is also not feasible where one party distrusts the financial disclosure made by the other party as this lack of trust prevents an agreement on finances being reached. When it does work, however, voluntary negotiations have the advantages of being quicker and cheaper than the court process as well as completely private and, hopefully, less stressful.

Early Neutral Evaluation and Private FDRs

It is possible to arrange for parties to be provided with an Early Neutral Evaluation (ENE) of their case. A specialist and experienced family lawyer is jointly instructed by the parties to give an indication as to the likely outcome of the case based on the information and documentation available. It is not a binding decision but it is hoped that by getting an early steer on how a matter is likely to be resolved the parties will be better able to negotiate a swift settlement and avoid lengthy litigation. Further information on ENE can be found here.

A Financial Dispute Resolution Hearing (FDR) is a negotiation hearing within financial remedy court proceedings. At that hearing both parties negotiate on a without prejudice basis and the judge provides an indication as to the likely outcome if the case proceeds to final hearing, in order to assist the negotiations. It can take many months to get a court listing for an FDR and so some people choose to instruct an experienced family lawyer to take on the role of the judge in a private version of the FDR hearing. Not only will a private FDR happen far more quickly than a court FDR but the private judge will have time to read and properly consider all the papers and will dedicate the allocated time (usually a whole day if needed) solely to that case. More information about private FDRs can be found here.

Arbitration

Arbitration is essentially private judging: a third-party arbitrator is chosen by you and your ex-partner to review your respective arguments and relevant evidence and material before imposing a final decision upon you. It is available for financial disputes and for deciding upon arrangements for children. Unless there are very unusual circumstances that transpire after the award is made, the court has made it clear that arbitrated awards will be upheld by the court.

The arbitration process is tailored specifically for your needs. With the advice of your lawyers, you choose your arbitrator and the way the process works. This means that sometimes arbitration will look quite like court proceedings held in private with the same or similar steps taken before the arbitrator makes an award. In other cases, it can be completed entirely on paper without the need to attend an arbitration hearing and give evidence in person.

If necessary, the arbitrator can decide what issues the arbitration is to deal with, determine the timetable of events, deal with what evidence is needed and how it will be presented (oral or on paper), and determine whether there is to be any sort of final hearing. Arbitrators can also make interim awards if necessary for example in relation to any income provision to be provided for the other party or the children before matters are settled or regarding interim arrangements for the children. You avoid the delays of the court system, and both the process and the outcome are completely private and confidential. Arbitration can work well after mediation or collaborative law to determine any remaining issues that cannot be agreed using those tools.


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