What are the main forms of Alternative Dispute Resolution (ADR) for Family matters?

What are the main forms of Alternative Dispute Resolution (ADR) for Family matters?

Methods of resolving conflict other than Court proceedings are often referred to as Alternative Dispute Resolution (ADR); ADR comes in many forms for Family matters. While there are certain cases that can only be resolved via Court proceedings, the majority of individuals and solicitors feel there are significant advantages is resolving matters away from Court. Keeping matters away from the Courts can save on legal costs, reduce stress, and help maintain a civil relationship with the other party (which is especially important when children are involved).

Whilst the preferred approach is for the two parties to be able to communicate directly and resolve any issues through an agreement between themselves, there may be times when this isn’t possible. And it’s at these times when consideration needs to be given to other ways of resolving the matter without involving the Courts. There are an increasing number of ways that matters can be resolved, so we’ve outlined some of the most common forms of ADR.

Mediation

Where parties need some assistance in communicating and seeking an agreement regarding family matters, such as in relation to children or finances, mediation is often a very good option. Mediation is a voluntary and confidential process that involves both parties speaking with a trained mediator who will aim to assist them in trying to resolve their dispute amicably. Mediation is a flexible process which can involve both parties discussing matters directly with the mediator in the same room, both parties occupying different rooms with the mediator ‘shuttling’ between them, or by way of a conference call. The process focuses primarily on the future, rather than what has happened in the past. Parties are generally advised to seek their own independent legal advice alongside mediation to ensure that they make informed decisions. An agreement reached in mediation is not in itself legally binding, but the parties can often agree to obtain a court order on the same terms if they wish to make it binding and enforceable.

Correspondence/Discussions via Solicitors

Where it is not possible for parties to resolve matters directly or in Mediation, which can be for a variety of reasons, consideration should be given to whether correspondence or discussions via solicitors may be able to assist with the matter. Depending on the cause of the dispute, it may be possible for matters to be resolved by communication between the parties’ solicitors if handled in the right way.

Early Neutral Evaluation

An Early Neutral Evaluation (sometimes referred to as a private FDR) involves an experienced and neutral third party (often a judge or experienced barrister) providing the parties in dispute with an assessment of the merits of their dispute. The assessment is not binding on the parties though. It is a confidential process that aims to inform the parties and focus them on approaching the dispute in a realistic manner with a view to encouraging them to settle matters by agreement.

Arbitration

Arbitration is a process in which the parties agree to appoint a trained arbitrator (often a judge or experienced barrister) to effectively decide their case in the same way that a judge would at Court. Arbitration can proceed in a much more swift and flexible way than Court proceedings with the parties in greater control about the procedure to be followed. For example, the parties could agree to hold a hearing in the same manner as at Court, or depending on the dispute could request that the arbitrator decide the matter solely on the papers. The arbitrator’s decision is confidential and binding on the parties. It can lead to matters being resolved in a matter of weeks, rather than many months as you may expect in Court proceedings.

Collaborative Law

Collaborative Law involves the parties each instructing their own Collaboratively-trained solicitors. The name comes from the fact that the lawyers and parties all work together to try to resolve the dispute. At the beginning of the process both parties and solicitors sign an agreement committing to resolve the issues without going to Court. This means that if an agreement cannot be reached, both parties’ solicitors are prevented from acting in Court proceedings. As a result, both parties would need to instruct new solicitors to take the matter to Court, which provides an incentive for an agreement to be reached. The process is intended to be non-confrontational. Negotiations usually take place by way of a series of face-to-face meetings between the parties and their solicitors. Other experts can be brought into the collaborative law process where appropriate, such as financial experts. If an agreement can be reached then this would often be formalised by way of a court order where appropriate.

Contact us

Anyone involved in a family dispute that is proving difficult to resolve would be advised to consult with a family solicitor at an early stage with a view to discussing the various options and assessing the best way forward.

If you need support or guidance in resolving a family matter, contact Janet Raeburn, Head of Rix & Kay’s Family team, on e. janetraeburn@rixandkay.co.uk or t. 01825 744 482