Dispute Resolution – what is it and what are my options?
Given the delays and cost of Court proceedings, not to mention the stress and emotional cost of going to Court, Court should only be considered as the last resort to resolving a family dispute. Sadly, however, too many cases end up in Court, often because individuals simply do not have the knowledge as to what options are available to them to resolve their family dispute.
Family solicitors regularly refer to Alternative Dispute Resolution (ADR) as a means to resolving the issues between individuals arising as a result of their separation, but what is meant by ADR?
ADR is an alternative way to resolve a dispute, other than litigation via Court. In family matters dispute resolution includes solicitor-led negotiation, mediation, collaborative law, Early Neutral Evaluation / Private FDR, and Arbitration.
The key feature of ADR is that both parties must agree to engage in the process. There are many advantages of ADR, which most notably includes the flexibility, reduced costs, and the ability for individuals to retain control in respect of their family situation because save for Arbitration, the other ADR processes mentioned above involve the parties reaching an agreement between themselves with the assistance of a trained third party.
The aim of solicitor led negotiation is to try and reach an agreement via solicitors’ correspondence, discussions on the telephone between solicitors or a round table meeting. Such negotiations can take place at any point and can continue to take place even if Court proceedings have been issued. Often solicitor-led negotiation is regarded as a good alternative to mediation, when mediation is not suitable.
Mediation is a voluntary, without prejudice and confidential process whereby the parties meet with a trained independent mediator. The mediator will not impose a decision on the parties and instead he/she acts as a facilitator to assist the parties to explore and discuss the issues in dispute, with the aim of finding solutions, narrowing the issues and/or reaching an agreement regarding matters as a whole. In family mediation, the mediator’s role is to ensure that both parties feel heard and that there is a balance of power in the meeting. The mediator cannot advise the parties, but he/she can provide information which will assist the parties in reaching an agreement. Mediation can take place in person or virtually, and in some cases children can be involved in the process, enabling their voices to be heard.
Under the collaborative process, both parties appoint their own solicitor who must be collaboratively trained. At the outset you and your solicitor will sign an agreement which commits you to trying to resolve matters without issuing Court proceedings and if the collaborative process breaks down, your solicitor can no longer act for you. This acts as an incentive for parties to see the process though to the end and agree matters. The discussions take place with both parties and their solicitor and in effect are 4 -way meetings with the aim of narrowing the issues and reaching an agreement.
Early neutral evaluation / Private FDR is a non-binding form of alternative dispute resolution, which emulates the Court FDR. The process involves the appointment of a neutral third party (an experienced solicitor or barrister) who acts as the “Judge”. The “Judge” reviews the financial disclosure exchanged between the parties and after listening to both parties’ submissions he/she provides an indication as to what he/she thinks would be the appropriate outcome if the matter was to be determined by a Judge at a Final Hearing within Court proceedings. It is upon listening to this indication, that the parties enter into negotiations via their solicitors/barristers with the aim of reaching an agreement. The indication provided by the “Judge” and the discussions that follow the indication are without prejudice.
Arbitration allows parties to obtain a final resolution to their dispute without the need to attend Court. Both parties choose and agree who the arbitrator will be and agree the date, time and location of the arbitration. Arbitration is often described as a private alternate to Court. In agreeing to arbitrate, the parties agree that the arbitrator’s decision will be binding on them. The arbitrator can make a decision on a discreet issue or the dispute as a whole. Moreover, the arbitrator can make a decision upon consideration of the papers or after hearing evidence from the parties. Arbitration allows parties who have been unable to reach an agreement between themselves the opportunity of having a decision imposed upon them whilst avoiding the delays which inevitability flow from issuing Court proceedings.
The various dispute resolution processes should never be considered as silos, and it is not uncommon for individuals to need the assistance of more than one ADR process option to assist them in unlocking all the issues in dispute. For instance, it may be that the parties use mediation to narrow the issues, but need the assistance of an FDR judge / Arbitrator to provide a view on outstanding issues in dispute or it may be that financial disclosure is exchanged via solicitors, but the parties attend mediation to discuss proposals for settlement. There is no one size fits all and the various ADR process options allows individuals to agree a bespoke timetable which meets their needs.
At Family Law Partners our team of family law solicitors can advise you on all options and after speaking to you about your case, we will advise on the most appropriate method and course of action to resolve your family dispute.
Hannah Viet is a Director, Specialist Family Solicitor & Mediator in our Horsham team. Please contact us for a confidential discussion on your own unique situation.