Stuart Barton (Head of Department) and Paula Fraser
Whether your dispute concerns arrangements for children, the future of the family home or resolving financial assets upon divorce, there is increasing awareness that making an application to the court is often the last resort. Going to court may guarantee you a definitive outcome but sadly, it will also bring with it stress, delay, uncertainty and above all else, costs. ADR includes a wide range of options to help parties resolve their dispute. Which one is best is very much dependent upon the nature of the dispute and the financial resources available to the parties.
There is no reason why the parties cannot get together and discuss their dispute directly. A kitchen table or a discreet corner in a coffee shop can all be the location for an agreement to be reached. This can happen at an early stage, even before the parties consult with their solicitors. It can also happen at a later stage when the issues have been narrowed but not fully resolved.
However, the parties should appreciate the limitations of the above method. If one party is more financially astute/experienced than the other, an unfair agreement may be reached. Moreover, whatever is ‘agreed’ directly is far from binding. It will inevitably be subject to review and analysis by their solicitors. It may be that the process of review leads to a revision of the original agreement and the parties could end up with something very different than they originally intended.
Pros: inexpensive; can resolve matters at early stage
Cons: not binding on parties; solicitors may recommend changing any agreement;
Negotiation through solicitors
This is probably the most ‘traditional’ form of ADR available. Proposals are made by one party’s solicitor and responded to by the other party’s solicitor (or the other party directly). Guidance can be offered over the merits of each proposal or counter-proposal along the way. The hope is that eventually an agreement will be reached.
This method of ADR remains extremely common but it has several disadvantages. It takes time for each proposal to be made, considered and responded to. Even with the use of email and telephone calls, reaching a negotiated solution can often take considerable time. Whilst it is usually cheaper than court proceedings, the longer that the negotiations continue, the more expensive it becomes. Of course, there is no guarantee that this process leads to an agreement.
Pros: cheaper than court (generally); can avoid unfair outcomes
Cons: can drag on unless definite time limit placed on negotiations
This has become an increasingly popular form of ADR. It is designed to give the parties an opportunity to take control of matters through a series of meetings with an independent mediator. The mediator’s role is not to provide legal advice. Instead, the mediator will encourage the parties to think carefully and practically about their objectives and endeavour to assist them in reaching a solution. Mediation is not for everyone and its success depends on the ability of both parties to commit to it and to focus on the future, rather than the past.
Mediation is a voluntary process. Nobody can be forced into participating in Mediation and there will occasionally be circumstances when the relationship between the parties means that mediation is not appropriate. It can be tried when each party has their own solicitor representing them, or without either party having a solicitor. It is now a requirement in the great majority of family cases that before court proceedings are issued, a referral to a mediation provider must be made.
If mediation proceeds, the parties will have a series of meetings with the mediator. The objective is to reach an agreement, often known as a Summary of Understanding. The Summary of Understanding is not a legally binding document in any way. Its purpose is to provide a framework for the resolution of the dispute. Once it has been agreed, the parties can reflect upon it or discuss the Summary with their solicitors. If the Summary is accepted by all concerned as appropriate, it can sometimes be converted into a legally binding court order.
Pros: cheaper than court/negotiation; works well for co-operative parties;
Cons: not always suitable for hostile parties; agreements are not binding
One of the drawbacks with negotiation through solicitors is the delay involved. One of the best ways to avoid this is for the parties and their solicitors to all meet together and discuss matters. The chances are that more can be accomplished in a focused meeting or series of meetings than by letters going back and forth over several weeks or months. If an agreement is reached at a round-table meeting, the parties should be aware that such an agreement will need to be clarified and usually converted into a legally binding court order.
Pros: focuses parties on resolving key issues; cheaper than prolonged correspondence
Cons: meetings depend upon willingness/availability of all concerned
Collaborative Law was introduced in the United States and has been adopted on a limited basis in England and Wales. It involves the parties and their solicitors meeting together throughout the dispute to resolve matters. The solicitor must have been trained as a Collaborative Lawyer to offer this service. Meetings may take place with experts such as accountants being present if there are complex financial arrangements to be resolved. The key principle of Collaborative Law is that at the start of the case, each party signs an agreement with their solicitor. This agreement provides that if the dispute is not resolved and leads to court proceedings, the solicitors must cease acting for the parties and play no further role in the case. It is hoped that this lends focus to the parties to resolve matters.
Pros: encourages respect/co-operation amongst all involved; can be cost-effective
Cons: limited availability of trained lawyers; parties often sceptical over merits of the idea
In family arbitration the parties jointly appoint an arbitrator to make a decision (using the law that applies in England & Wales) over their dispute. The arbitrator acts essentially like a Judge would in court proceedings, eventually making a decision that will be final and binding upon the parties.
Unlike the majority of court proceedings, the same arbitrator will deal with all stages of the case from start to finish. Moreover, the parties have a say in how the proceedings run. They can indicate the timetable to resolve matters, what evidence is needed and how many court hearings are required. Arbitration can deal with all issues that are in dispute or just one or two specific aspects. This provides for flexibility and speed that are not found in court proceedings.
Pros: quicker than court; input into timescale/issues to be resolved; binding outcome
Cons: more expensive (generally) than other forms of ADR
The above options are all valid means of resolving matters without court proceedings. It can be seen that there are no ‘right’ or ‘wrong’ choices when it comes to ADR. The choice of which one to adopt will largely hinge upon the wishes of the parties, the nature/complexity of their dispute and the financial resources each of them have available.