Types of Alternative Dispute Resolution (ADR) in Family Law
Alternative Dispute Resolution (ADR) in Family Law
Often separating from your spouse or partner can be a very difficult and stressful time in your life with many issues to resolve. For many couples, going through the courts is not always the best option as it increases animosity and can be lengthy and costly in nature. Different types of Alternative Dispute Resolution (ADR) can help parties try and resolve matters in a more cost-effective way.
What is alternative dispute resolution?
ADR is a process for resolving disputes without the need to go to court. In family law, this could involve mediation, negotiation, a private Financial Dispute Resolution Appointment, arbitration or a collaborative approach. ADR works well for people who are willing to resolve matters in an amicable and non-confrontational way.
The various types of alternative dispute resolution are:
Mediation involves you and your spouse or partner meeting with a trained independent mediator who will help assist you to explore and discuss issues, with the aim of finding solutions, narrowing the issues and/or helping people to reach an agreement. The mediator will remain neutral and will not provide either of you with legal advice. A mediator can help with arrangements for the children and/or financial division of assets following separation.
If you are able to reach an agreement in mediation, the mediator will record the agreement so that, where required, a solicitor can draft the agreed terms into a legally binding document which is submitted to the court.
Mediation may not always be appropriate for a parting couple especially if there is domestic abuse within the relationship. In these cases other types of alternative dispute resolution may be more suitable.
Negotiation through solicitors
Negotiation will require you and your spouse or partner to provide disclosure before entering into negotiations via solicitors’ correspondence which will hopefully lead to an agreement. Again, if an agreement can be reached, one of your solicitors will draft the agreed terms into a legally binding document which will be approved by both parties before being submitted to the court.
Arbitration is an alternative to applying for a decision from the court and involves a referral of your case to a skilled, trained arbitrator. They are usually someone who is legally qualified and has experience in family law. The appointed arbitrator will hear from your respective legal representatives and will examine the issues which require a decision. The arbitrator will issue a decision that is legally binding on you both which can be enforced through the courts.
The arbitrator can generally hear a case and will issue a decision more quickly than a court will be able to resolve a case.
Collaborative law requires both you and your spouse to be represented by collaboratively trained lawyers. At the outset, everyone signs an agreement setting out the ground rules and agreeing that the case will not be taken into court unless the process breaks down. If the collaboration does not succeed, both you and your spouse will need new solicitors to deal with court proceedings.
All of the discussions about settlement take place at round table meetings with both legal representatives and clients present. Generally, any experts such as valuers or accountants or pension experts are instructed jointly on a shared cost basis. This will enable both parties to discuss matters which are disputed and the aim is to reach an agreement which will then be drafted into a legally binding document which is then submitted to the court.
Early Neutral Evaluation (ENE)
ENE involves the appointment of an independent, objective and neutral third party to assist the parties to understand the court process, identify what the issues in dispute are and give their opinion as to what a court might decide. This can be considered before proceedings have been started or during court proceedings. This decision is confidential and is not binding or enforceable, but is an indication from an experienced barrister or part-time Judge, of what the outcome may be. It is intended to help the parties to consider whether they are able to reach an agreement together and can be used to consider financial or children cases.
In particular, it is used in matrimonial finance proceedings where it is known as a private FDR. An FDR Judge will hear the case independent of the court process and can also be asked to just consider a discreet issue. The FDR Judge will review the financial disclosure which has been provided by both spouses and will hear from each spouses’ legal representatives. The Judge will give an indication as to what they believe to be the appropriate outcome if the matter was determined in court at a final hearing. Once the parties have heard the indication provided by the Judge, they will enter into negotiations with the aim of reaching an agreement. This agreement can then be sent to the court for approval.
Talk to Tollers
There is no one size fits all and it is possible that a couple may need the help of one or more ADR process.
If you require assistance and want to consider ways of reducing conflict and would like to find the process most suitable to you … Talk to Tollers on 01438 901095. Our experienced family team is on hand to guide you through and help you to try and reach an agreement outside of the court.