Family Law and Alternative Dispute Resolution

Family Law and Alternative Dispute Resolution are becoming ever more closely aligned, reflecting a growing recognition within the legal profession that court proceedings are not always the most appropriate means of resolving family disputes. Alternative Dispute Resolution (ADR) is the umbrella term given to various methods of resolving disputes out of court. Unlike traditional litigation, which involves a judge making the decisions, ADR allows both parties to actively participate in forming mutually palatable agreements.

In family law, ADR is widely encouraged by family lawyers as being a more cost-effective and streamlined method of resolving family law disputes. Both parties’ willingness to engage in ADR, as opposed to traditional litigation, encourages communication, collaboration and compromise, often resulting in a more amicable resolution.

ADR comes in many forms, allowing disputing parties to choose the most appropriate method for their specific set of circumstances, avoiding the need to become embroiled in costly contested litigation.

Mediation

Arguably, the most accessible and popular form of ADR used in family law, mediation is where an independent, neutral third party (the mediator) facilitates discussions between the parties in order to help them reach a voluntary agreement. Whether it’s discussing ongoing arrangements for the children or how the assets should be divided on divorce, the skilled mediator will help focus the negotiations, promoting understanding of the law, whilst helping to assist the parties in reaching amicable agreements.

The mediator will record what has been agreed and after that has been done, the parties’ lawyers will properly record the terms of any agreement into a formal written agreement and or consent order, if appropriate. Mediation is voluntary and relies on both parties acting with the utmost good faith toward one another. It is generally not appropriate in cases where there has been domestic abuse.

Family mediation itself comes in many forms, the most common are:

Traditional method: Where the parties jointly meet with the assistance of the mediator to discuss the issues, with a view of reaching an amicable resolution.

Hybrid mediation: Like the traditional method, but with active involvement of both parties’ lawyers, often used in more complex and high conflict cases.

Shuttle mediation: The mediator moves between separate rooms where each party is situated, relaying information and proposals back and forth. This method is designed to reduce tension and allows both parties to communicate their needs and concerns without direct confrontation.

Child inclusive mediation: A type of mediation that gives the child a voice and an opportunity to share their worries and concerns whilst their parents are in mediation, before arrangements affecting the child are made or changed.

Arbitration

Arbitration provides a formal alternative to going to court, whilst allowing both parties greater influence over how the process unfolds and how the matter is resolved. The parties schedule their own hearings at their convenience, making this a more flexible alternative to court and accommodating to individual circumstances. In this procedure, an independent appointed arbitrator reviews the evidence presented on the facts and makes a decision (the award) that is, in many cases, legally binding on the parties.

Although arbitration shares similarities with traditional litigation, it is typically faster and more tailored to the parties’ needs. This flexibility helps disputes be settled in a more streamlined and effective manner and can be used to discuss financial and property issues, to include Financial Remedy Proceedings and property disputes arising out of the Trusts of Land and Appointment of Trustee Act 1996 and private children law disputes.

Collaborative practice

The collaborative law process involves the parties, and their respective specialist trained collaborative lawyers, engaging in a series of round table meetings to discuss the issues of the case.

The goal of the collaborative process is for the separating/divorcing couples themselves to make the decisions about their family, be that about financial separation or arrangements for the children, or both, with the support, guidance and advice of their respective specialist collaborative lawyers.

At the beginning of the collaborative process, the collaborative lawyers and their clients enter into a formal agreement that outlines everyone’s commitments and responsibilities. This document identifies the shared intention to work together constructively and to reach a mutually acceptable outcome that benefits both parties, avoiding hostility, conflicts and contested court proceedings, wherever possible.

Lawyer-led negotiations

Lawyer-led negotiations can be a highly effective tool in resolving family disputes outside of the family court for couples who are separating or divorcing.

With this approach, each party appoints their own lawyer to represent them. The lawyers communicate and negotiate directly on the disputed issues with one another on their client’s behalf, putting forward proposals, responding to offers and working to protect their client’s best interests. Once agreement has been reached, the lawyers will be able to properly record the terms of any agreement into a formal written agreement and or consent order, if appropriate.

Even in high conflict cases or when discussions have stalled, lawyer-led negotiations can help clarify the key issues and narrow the areas in dispute. By focussing discussions through legal representatives, the process can reduce conflict and support progress towards a workable resolution, without the need for lengthy contested litigation.