Myth Busting Alternative Dispute Resolution (ADR)

Whilst the President of the Family Division has made it clear that the Court’s key aim over coming weeks is to ‘keep business going safely’, there is no doubt that coronavirus has significantly impacted Family Justice and will continue to do so over coming months.

The Courts are trying their best to cope with the extraordinary consequences of this pandemic and to comply, where possible, with the government’s social distancing guidance by conducting hearings remotely, but at present they lack the necessary technology and infrastructure to enable Family Justice to proceed at the pace it usually would and many hearings are being adjourned. For more guidance on what to do if your hearing has been adjourned, please see our earlier blog ‘My Family Court Hearing Has Been Adjourned Due To Coronavirus’.

As a result of the current challenge, the Courts are urging all separating couples to use Alternative Dispute Resolution (ADR) to ensure that their separation keeps moving forward during this period.

So, what actually is ADR?

ADR is an umbrella term which refers to the variety of non-Court options available to couples on the break-down of their marriage which includes arbitration, mediation, private financial dispute resolution (Private FDR) and our own One Couple One Lawyer service.

ADR is generally a more conciliatory, cost-effective and quicker way to separate, as it enables couples to avoid expensive, time-consuming litigation at Court, whose processes tend to lead to a more lengthy, costly and acrimonious separation.

With the variety of ADR options available, you might be wondering which option your separation is best suited to and so we thought we’d give you a handy guide.

Arbitration

Parties appoint an impartial expert Arbitrator (usually a specialist barrister or retired Judge) to help them reach agreement on part or whole of their dispute (finances, property or child arrangements) in a private setting. By agreeing to the process and appointing an Arbitrator, parties accept that the Arbitrator can make final decisions and that such decisions are binding.

At the end of the arbitration, the Arbitrator will either issue an Award (in relation to financial disputes) or a Determination (in relation to child arrangements) and this will then be enshrined in a Court Order. Arbitration is a direct alternative to Court proceedings in that it produces a binding outcome. Its significant advantages are that it is completely private and confidential, unlike Court proceedings where media representatives are permitted to attend, you can choose your Arbitrator (you cannot choose your Judge) and the venue will usually be much more comfortable than the Court arena.

Cost: There will not be a huge costs saving. Parties will have to pay the Arbitrator’s costs. In most arbitrations both sides will be represented by barristers and solicitors. Arbitration can still, however, be lower cost than pursuing litigation largely because you are likely to get a much earlier date for a final hearing. Parties can also reduce costs further by streamlining the arbitration to focus on certain key issues.

 Speed: Arbitration is a faster and more flexible approach as the timetable is agreed by the couple rather than the Court.

Mediation

Parties meet with an impartial professional Mediator. The Mediator will help parties to determine the issues in dispute and will facilitate calm and rational discussions between parties to help them reach agreement. The key difference between mediation and arbitration is that a Mediator only facilitates discussion and negotiation, they do not have the power to make a binding decision. Mediation is best suited to couples who are open to compromise and who are willing to be reasonable. Another key aspect is that Mediators cannot give legal advice, so couples should ensure they have access to legal advice either alongside or before mediating.

Cost: Mediation is a cost-effective option as the hourly rate will be lower than a lawyer’s. However, couples should ensure they know the likely legal outcomes in their particular case as this will make any mediation much more constructive and effective.

Speed: Mediation is open ended, so there is not a fixed timescale. As a rule of thumb, if couples are not making progress within 3-4 sessions it may be worth trying an alternative or getting some legal advice if a matter of legal principle is causing a barrier to settlement.

Private FDR

Parties appoint and meet with an impartial financial dispute specialist (usually a barrister or retired judge) who will advise them on how a Court would most likely treat their financial situation. The Judge will be given all information to read and consider prior to the meeting, and the meeting usually happens over the course of a day. Generally both parties are represented and will attend with their own solicitors and barristers, who will make submissions on their behalf. By the end of the private hearing, the Judge should have provided a clear indication of what a Court would decide, and this should help parties reach an agreement on the key financial matters of their separation. However, unlike with an Arbitrator, the Judge cannot make legally binding decisions.

Cost: Parties must fund the costs of the private FDR Judge themselves. The costs of a Private FDR can still be less overall than the costs of a Court ADR, largely because the hearing can be arranged so much sooner. Given that both sides are usually represented by barristers and solicitors, the costs of the day will be significant, but this is usually an incentive to settle matters there and then and avoid further expensive litigation later down the line.

Speed: As with the other forms of ADR, parties can choose the date and time of the FDR which usually lasts for a day.

One Couple One Lawyer

One Couple One Lawyer is a service which enables couples to come together to The Divorce Surgery to receive advice from one impartial barrister who advises them both, together, on what a Court would, in their particular situation, consider to be a fair outcome in the eyes of the law. The barrister advises on a joint basis as to what is fair for both of you.

Prior to the advice, The Divorce Surgery assists couples through the disclosure process. It is a basis of the service that neither side need to be represented by solicitors, although at the end of the process they can cross-check the impartial advice we have given with their own legal teams if they would like to.

Once couples have attended the Advice Session with the barrister of their choice, they both receive written advice setting out the likely outcome if they were to go through the Court process. Once couples both know what a Judge would consider fair in their circumstances, they can negotiate constructively, safe in the knowledge that any deal they reach will not be rejected by a Judge. Once they reach agreement, we can convert it into a Court Order.

Cost: The Divorce Surgery offers a fixed fee price for the entire process, which starts at £4,750. This is the total fee, as couples do not bring solicitors or barristers into our process so they simply pay for one impartial barrister who advises them both.

Speed: The process lasts 6-8 weeks. All the meetings can be conducted via video link.

Face to face negotiations

Separating couples can also try to reach agreement on matters on their own accord, without professional help. This may be a good option if your separation is on good terms and you are looking to keep relations as amicable as possible and costs low. However, it is often helpful to get legal advice so that you can both fully understand the extent of your rights in relation to your finances, children and property before beginning discussions between yourselves; and if your negotiations become hostile, you should seek professional assistance to facilitate more constructive discussions. Many couples access joint legal advice through a One Couple One Lawyer service before commencing face to face discussions so they have a clear, expert and impartial explanation of what their respective legal rights and obligations are.

Divorce Coaching

A divorce coach works with individuals to help guide them through their separation. They can help you to make important decisions, improve communication between you and your spouse, and offer emotional support to you during this difficult time. A divorce coach does not offer legal advice or counselling but rather non-judgmental guidance which aims to help individuals develop coping strategies to navigate their divorce and move forward. This can be a very useful resource alongside legal advice.

So, which option is best for you?

At first glance, some options may stand out more than others, but you should know that it is possible to move between options in order to discover what works best for your given situation. There is nothing to prevent you from kicking things off with mediation and then instructing individual solicitors to then try arbitration if you decide that a more disciplined approach is necessary. Alternatively, a couple might get advice through The Divorce Surgery and then decide to negotiate between themselves, face-to-face, with their written advice report to hand, or in mediation with solicitors on each side.

What is clear is that engaging in litigation can be a stressful and expensive experience in which parties can find themselves losing control of their separation, without any guarantee of achieving a settlement that is fair to both. It is therefore crucial, not only during coronavirus, when the Courts are under particular strain but at any time, that you are aware of all ADR options available, so that you can decide what serves you and your spouse best and enables you to move forward with your separation constructively and efficiently.


If you have more questions about this topic or any other legal issues arising on divorce or separation, please do get in touch as we are always happy to help. You can call us on 0203 488 4475 or email contact@thedivorcesurgery.co.uk.


Author Name: Editor
admin Published content by The Divorce Surgery Editorial Team.

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