Alternatives to court

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– Chambers and Partners UK Guide 2018

We advocate the use of alternative dispute resolution methods to resolve family disputes. Such methods can not only reduce your legal costs and, perhaps more importantly, allow you to engage in the process and feel involved in making the important decisions which will impact upon your family in the future. This can be especially important for separating parents, both in relation to reaching an agreement about their finances and in respect of the care of their children, and can help them move towards a successful co-parenting relationship.

We will discuss your options further with you as part of an initial meeting, so that we can advise which methods are best suited to your circumstances. We may recommend one or more of the following. Please also refer to our options page for more information [hyperlink to costs decision tree/options documents].

Private hearings and arbitration

Private hearings can take one of two forms. You can either attend a non-binding settlement hearing (known as early neutral evaluation or a private FDR) or you can agree to attend arbitration which will result in an outcome which is binding upon you both.

If you opt for early neutral evaluation (ENE) or a private Financial Dispute Resolution (FDR) hearing, you and your ex-partner, together with your lawyers, will present your respective cases to a private judge whom you have both hired for the day to assist with your case. The judge will be an experienced family lawyer or a retired judge. They will hear your submissions about your case and your positions and then give their opinion on how a judge in court would determine the case. This opinion does not bind either of you but is effective at focusing your minds on settlement and, in our experience, can be very helpful at moving you towards reaching an agreement. Given the pressures experienced in the court system, we regularly recommend private FDRs to our clients as a way to ensure the dedicated attention of the judge and an environment which will be much more suited to reaching a settlement. We can host private FDRs or ENE at either of our offices.

In arbitration, the appointed arbitrator – sitting as the judge – will hear evidence from both of you, as if you were in court, and make a final decision. This will be binding upon you. It is equivalent to the court process but offers you the ability to select your judge, the location of the hearing, and the way in which the hearing will proceed. Where it normally takes between 6 and 9 months for the court to list a final hearing, we can arrange arbitration in a matter of weeks. This can result in a significant costs saving, as well as provide certainty for you much more quickly. Arbitration is suitable for financial disputes as well as disagreements about arrangements for children. It can also be used to deal with discrete issues, if you have reached an impasse with your ex-partner about a particular issue.

Collaborative law

Collaborative law is a good option for you and your ex-partner if you are committed to working together to reach a settlement or agreement, and wish to avoid an acrimonious and lengthy court process. It involves a series of meetings where you and your spouse meet in the same room with your respective collaborative lawyers and everything is discussed openly and honestly with a view to resolving the issues and reaching an amicable agreement.

For more information, please see our dedicated collaborative law page.

Mediation

Mediation can be an effective way to reach an amicable solution in a quick and painless way. You will meet with a mediator who will work with you and your ex-partner, keeping communication channels open, listening to both sides of the argument and helping you reach a dignified agreement while keeping acrimony and costs to a minimum. We can recommend suitable and qualified mediators to you. It normally takes between three and six mediation sessions to reach an agreement – some couples may need longer, whilst others will settle sooner.

We are also able to offer mediation services.  

Common mediation questions

Mediation is a way of resolving disputes after separation or divorce that aims to avoid costly and lengthy court proceedings. You and your husband/wife/partner meet with a mediator whose job it is to help you reach agreement on whatever issues remain in dispute. This could be in relation to divorce, financial settlement or arrangements for children. The mediator always acts impartially and so will not give legal advice to either party and cannot impose a decision without both parties’ agreement. However, because mediation meetings are confidential, they are a safe environment in which to discuss and resolve issues that arise openly and honestly.

Most mediation involves the separated couple meeting the mediator together and sitting around a table to have the necessary discussions. However, it is possible for the mediator to meet you separately. This is called shuttle mediation. Many mediators are also now offering remote mediation, via videoconferencing, which can avoid the need to be in the same room.

You do not have to go to mediation before issuing a petition for divorce. If, however, you want to issue an application for the financial issues to be resolved, or an application for an order relating to your children, then it will usually be necessary for you to first attend a Mediation Information Assessment Meeting (MIAM) before being able to make the application. The purpose of the meeting is to see if mediation could be used to resolve your difficulties rather than going straight to the court. There are some limited exceptions to this requirement, which we will discuss with you if appropriate.

If your ex-partner refuses to attend mediation, then the mediator may conclude that mediation is not appropriate in your case. This can make court proceedings more likely. We can work with you to resolve your dispute in other ways without going to court, and will discuss your options with you.