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10 July 2020

Alternatives to family courts – options explained

Non-court based dispute resolution is nothing new in family disputes. Mediation has been utilised in family cases for at least 30 years and, since 2010, the court has been under a duty to consider, at every stage in proceedings, whether non-court dispute resolution is appropriate. Whilst many judges have been supportive of other ways of trying to sort things out, the present COVID-19 pandemic has focussed attention on these alternative processes.

Throughout the last four months the English family courts have remained ‘open for business’ but the judges have primarily been trying to deal with genuinely urgent cases involving children and domestic violence. People caught in the court process have been met with significant delays in the handing of paperwork and hearings have been postponed, often at short notice. Many report that financial proceedings have stalled or are being put on hold. Inevitably backlogs are developing. Whilst some judges are becoming increasingly competent at conducting hearings by phone and Skype such ‘virtual’ hearings are not suitable for all situations.

One response to this crisis is that the judge in charge of financial disputes in the Central Family Court in London issued guidance stressing the importance of alternative dispute resolution. His note not only provides that the parties and the court shall consider at all stages of the proceedings all routes by which the matter may be resolved other than by a further court hearing but goes on to stipulate that the parties should make use of private financial dispute resolution appointments, arbitration and ADR wherever possible. The court must consider in all proceedings whether non-court based dispute resolution is appropriate and may exercise its powers to adjourn proceedings:

  • to enable the parties to obtain information and advice about, and consider using, non-court dispute resolution; or
  • where the parties agree, to enable non-court dispute resolution to take place.

Mediation is not yet compulsory in family disputes but the message seems to be clear that, even once proceedings have been started, judges will lean on litigants to direct them out of the court process and into a different one. The encouragements will be that other options are quicker, potentially cheaper and will give the parties greater control. Judges are expected to flex their muscles to control how cases proceed.

So what are we talking about?

Mediation

Here the couple ‘meet’ with a neutral third party who helps them to identify what is important to them and assists them to negotiate with each other in a safe environment to address disagreements about money or their children. Mediation can be flexible in that there can be more than one meeting with the mediator over a period of time and the parties are free (in fact encouraged) to take legal advice before any agreements are reached. Assuming a successful outcome is reached the mediator will then explain what the couple need to do to ensure that the agreement sticks. This may involve the preparation of a formal Separation Agreement pending the courts returning to normal. Parents may wish to record what they have agreed about their children in a Parenting Agreement. Roopa Ahluwalia and David Thompson, Partners in our family and matrimonial team, are experienced mediators and all of our lawyers are used to assisting clients going through the mediation process. Modern software such as Zoom is perfectly adaptable to allow mediations to occur even when the parties and the mediator cannot physically meet.

Solicitor negotiation

The vast majority of cases never actually need a judge to make a final decision. Although our team continue to work remotely they are in regular contact with clients by phone, video calls and email and are actively progressing their cases. Whilst for the time being physical settlement meetings may not be taking place, effective negotiations continue to occur. Accumulating financial information and obtaining valuations may be taking longer than normal but these problems are not insurmountable. Four members of our team (Roopa Ahluwalia, David Thompson, John Darnton and Helen Cort) are also trained Collaborative lawyers. Collaborative working is a particular method of negotiation which means that the couple and their solicitors all sign an agreement specifically providing that they will try and reach an agreement without involving the court.

Early Neutral Evaluation

Sometimes a couple get stuck on a particular issue, for example what to do about an asset owned before the marriage. One way of trying to resolving this is to obtain a non-binding indication from a senior barrister based on their experience of what a judge may do if things got that far. Such an indication can often be obtained quickly in writing.

Private Financial Dispute Resolution

A corner stone of the court process is the Financial Dispute Resolution appointment (an ‘FDR’). An FDR is a court hearing where the parties attend with their lawyers for the sole purpose of trying to negotiate a settlement. The role of the judge is to give an informed view of the right outcome and help steer the discussions. When the FDR is ‘private’ an experienced barrister or retired judge normally fulfils the role normally played by the judge sitting in court. Again this is a process which can readily take place ‘virtually’.

Arbitration

Arbitration is very similar to the court process in that ultimately a third party (normally an experienced solicitor or barrister) receives representations on the part of the parties and makes a decision which is, for all intents and purposes, binding on the parties. Again arbitration is a flexible process. The parties decide who they want to act as the arbitrator and the issues that they want to have resolved. Simple matters can be decided on the basis of written submissions and more complicated cases can be decided at a hearing where the parties can be represented by a solicitor or barrister. We have had recent experiences where arbitration has been used successfully to secure good results for our clients.

If you would like further advice in respect of the options available then please do contact a member of our family and matrimonial team.

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