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The family courts are under immense pressure, and backlogs and delays are plaguing the family law court system. This can cause significant harm as well as uncertainty, increased costs and additional stress for the families involved. It can also contribute to more animosity between parents and spouses and make views more entrenched which can make resolving matters more difficult.
If you apply to court it can be many months before you get a first hearing. Even once you get a court hearing there is no guarantee it will go ahead, more and more frequently cases get cancelled at the last minute due to a lack of judicial availability. The reality is it can take many months, and in some cases years, for matters to be resolved through court proceedings.
In the case of Re B (a child) (Unnecessary Private Law Applications)  EWFC B44, his Honour Judge Wildblood QC said: ‘Do not bring your private law litigation to the family court here unless it is definitely necessary for you to do so,’ he said. ‘You should settle your differences (or those of your clients) away from court, except where that is not possible. If you do bring unnecessary cases to this court, you will be criticised, and sanctions may be imposed upon you.’
The President of the Family Law Division Sir Andrew McFarlane has also stressed that cases of straightforward relationship ‘dysfunction’, not involving abuse or a need for protection, should not need to go before a magistrate or judge for resolution. At a speech in October 2022, the President stated that taking proceedings to the Family Court should be the option of last resort, rather than, as it is seen by many, the first port of call.
The first question to ask yourself is: Do you really need to be taking your case to court in the first place? The answer may well be yes, there are some cases where other options will not be suitable or appropriate. But there may be more suitable options available for you depending on the circumstances of your case.
To be clear looking at alternatives to court is not just about alleviating the pressure on the courts. It’s about reducing the level of animosity that can be caused by separation or divorce. It’s about saving families time and costs as well as finding outcomes for separated families that are long-lasting. It’s about finding the right tool for the job. The court can be a blunt instrument.
Here is a summary of some of the options that are available to resolve issues instead of going to court:
DIY: You may be able to sort out matter between yourselves without assistance from any professionals or court orders. If you do though it is best to then get legal advice on the terms of the agreement reached and what steps if any you need to take to make the agreement legally binding.
Mediation: Family mediation is a voluntary process where an independent, professionally trained mediator helps separating couples find solutions to issues that arise as a result of divorce or separation.
Child-inclusive mediation: Child-inclusive mediation is intended to give children a voice at a time when their parents are separating. Where both parents and the child agree, a child-inclusive mediator may meet the child separately to the parents to ascertain the child’s wishes and feelings. The mediator will discuss with the child what, if anything, is fed back to the parents.
Hybrid mediation: in Hybrid mediation often the separating couple will each have their own lawyer present for all or part of the mediation. The hybrid mediator will only share between the separating couple information which they have been authorised to disclose. This means that hybrid mediators can have separate, confidential meetings with each of the separating couple, and can exercise more creativity in helping them reach an agreement.
The collaborative process: In the collaborative process the separating couple each instruct a specially trained collaborative lawyer. The lawyers then work together rather than against each other to support the separating couple to resolve issues.
Lawyer-led negotiation: In solicitor-led negotiation the separating couples will each have a lawyer that represents them and negotiates on their behalf, this could be through letters/emails, telephone calls or round-the-table meetings.
One couple/one lawyer: Most couples facing divorce or separation feel the need to ‘lawyer up’ resulting in opposing lawyers each fighting their client’s corner. The foundations of the relationship, such as trust and compassion, can be early casualties caught in the crossfire of an aggressive legal process. The one couple/one lawyer option avoids this, as there is one lawyer who will look after both of the separated couple.
Arbitration: Arbitration simply put is private court proceedings where an arbitrator is appointed, rather than a judge provided by the state, to hear about the issues and then make a final decision that the separating couple agree to be legally bound by.
Arbitration/Mediation: In arbitration/mediation an arbitrator is appointed at the outset but the separating couple initially engage in mediation first, on the basis any issues that can’t be resolved at mediation will be left to the arbitrator to determine.
Early neutral evaluation: In early neutral evaluation (sometimes referred to as a Private Financial Dispute Resolution/private FDR)) an expert lawyer is chosen to look at the issues in the case and provide an early indication of the likely outcome if the issues were to come to court.
It’s important to be aware that the options available to resolve issues are not mutually exclusive to each other or indeed the court. The best results are often reached when, rather than working in a silo, different skills and expertise are drawn on depending on what is needed to resolve matters.
There are a variety of professionals that work with separating couples such as family consultants, mediators, financial experts and lawyers. With all the options a multi-disciplinary approach is best, making sure you have the right person for the right job.
It may be that you are willing to engage in non-court dispute resolution but the partner you are separating from is unreasonably refusing to do so. In these circumstances, it is worth raising awareness of the following so it is clear that there can be sanctions and penalties if cases are being unnecessarily brought before the court.
Pre-action protocol (Practice Direction 3A of the Family Procedure Rules): There is a requirement for a person to attend a Mediation Information Assessment Meeting (MIAM) before making certain kinds of applications to obtain a court order. The court has a general power to adjourn proceedings in order for non-court dispute resolution to be attempted, including attendance at a MIAM to consider family mediation and other options.
Part 3 of the Family Procedure Rules: The court must consider, at every stage in proceedings, whether non-court dispute resolution is appropriate. It requires the court to ask about non-court dispute resolution at every court hearing. In the case of WL v HL  EWFC B10. The judge used his case management powers under Part 3 of the Family Procedure Rules to stay proceedings to enable the parties to engage in non-court dispute resolution. The judge did so on the basis that the costs incurred by the parties and the estimated future costs were disproportionate to the issues the court had to determine.
The Family Solutions Initiative puts Part 3 of the Family Procedure Rules front and centre, requiring the parties, their lawyers and the court to apply Part 3 at all times with evidence that they have done so. The initiative is supported by Family Solutions Group.
An Ungley Order
This is an order that ‘stays’ (i.e. puts on hold) court proceedings while the parties engage in non-court dispute resolution or, at the very least, consider it. If one party considers that the case is not suited for non-court dispute resolution, they must file a witness statement without prejudice, save as to costs, at least 28 days before trial explaining why, for example, see the case of Mann v Mann  EWHC 537 (Fam).
The court are increasingly expressing its judicial displeasure, including via the making of costs orders, if there has been no reasonable engagement with non-court dispute resolution. Costs sanctions may be imposed in some circumstances where parties have refused to engage in non-court dispute resolution. For example, see the case of JB v DB  EWCH 2301 (Fam).
If you would like to find out more about whether non-court processes would be suitable for you or what you can do to try and save time and costs if you are involved in court proceedings please contact us.