Good Divorce Week 2022: Resolving disputes away from court

This year, Resolution’s initiative “Good Divorce Week” is centred around raising awareness of the different ways in which parties can resolve their disputes outside of the court process. This focus has been prompted in recent months (and years) by a family court system in crisis, with huge backlogs on administrative matters and long waiting times for hearings putting a significant strain on families. This blog will discuss some of the non-court options for those needing to resolve a family law issue.

In his recent speech, the President of the Family Division, the Rt Hon Sir Andrew McFarlane produced an intelligible soundbite which has reverberated across the family law world: “almost anything but the Family Court”. Referring to the 80,000 private law children cases currently outstanding, and the average 44 week wait time for a dispute to be resolved, the President queried whether parties too often see the court as a first port of call, rather than an option of last resort.

Resolution write that despite the best efforts of court staff, the significant backlogs and delays in the family court are frequently leaving families in limbo for long periods of time. The view of many is that government-funded early legal advice to parties would be a helpful solution to prevent so many cases reaching court. There will of course always be intractable cases or those involving domestic abuse or child protection issues which must (and rightly so) pass through the court process. However, freeing the court of cases which are capable of resolution through other means could give these cases the proper (and timely) treatment that they require.

At Kingsley Napley, we are strong supporters of Good Divorce Week and we assist clients to resolve their disputes in a way which best fits their circumstances. This often involves routes outside of the court process and some of the most common options are:-

Mediation

Mediation is a private, voluntary process whereby a series of meetings are held between the parties and a mediator of their choosing. Together they discuss the relevant issues and try to reach an agreement. The role of the mediator is to be objective and not to advise or impose their view on the parties, but to provide a structure to the discussions and assist with negotiation. Mediation allows parties to retain control over their decisions and enables practical as well as legal matters to be addressed together, fostering greater creativity and flexibility for the family’s individual circumstances.

Mediation can be arranged quickly and relatively cost effectively, at a pace which is comfortable for both parties. If the parties can reach an agreement through mediation, this is often a quicker and cheaper alternative to court proceedings. Parties who have instructed solicitors may also involve them in the process and have them attend the mediation for added support and advice.

At Kingsley Napley we encourage clients into mediation when appropriate, by helping choose the right mediator and guiding them through the options and process. We also act as mediator in a whole range of family issues with considerable success. For further information and details of our mediators, visit our Mediation page.

Round table meetings and collaborative law

The collaborative process involves a series of meetings (commonly called “round table meetings”) where the parties sit down together, with their respective solicitors, to work towards an agreed outcome. Everyone signs a participation agreement committing them to resolving the dispute outside of court and within specified parameters.

Round table meetings can work extremely well where the relationship between the parties allows, as each party discusses openly the matters that are important to them. Questions can be asked and answered there and then, avoiding lengthy correspondence between solicitors, and everyone understands the advice being given and why. Both round table meetings and Collaborative law help to minimise conflict, retain control and promote a better ongoing relationship between parties than the court process would, while often being a much faster alternative to formal proceedings.

The family team at Kingsley Napley are always keen to reduce conflict wherever possible and regularly use round table meetings (either with or without the clients present) to help cut through the issues. For further information and recent examples of our work, visit our Collaborative Law page.

Arbitration

Arbitration is effectively a private version of court proceedings; when parties are not able to reach an agreement between themselves, a qualified and experienced third party (typically a senior barrister who specialises in family law and is trained as an arbitrator) can be chosen to make a decision which is then final and binding (albeit capable of appeal in the same way as a court order).

The advantages of arbitration include that the parties can choose their arbitrator and venue, dictate the procedure, and have complete control over the timetable. The arbitrator will have the time to read and consider all the papers in advance of the arbitration (a luxury which is often not available to judges sitting in court) and they can provide a determination within a short timeframe so the parties are not left in limbo for too long. Another attraction of arbitration is that the parties are guaranteed an entirely private process; something which cannot be said for decisions made in the family court.

Arbitration is a process that we at Kingsley Napley are using more and more for a whole range of financial and children issues. For more information, visit our Arbitration, Private Hearings and Early Neutral Evaluations page.

Private FDRs and early neutral evaluation

The financial court process will in most cases involve a financial dispute resolution hearing (“FDR”) in which the parties are encouraged to negotiate and reach an agreement. The judge’s role at this hearing is to give an indication of what they think the outcome of the proceedings will be. It is possible to privatise this element of the court process at an early stage (officially termed “Early Neutral Evaluation”) whereby the parties select a third party (usually an experienced family barrister or a retired family judge) to assess the merits of the case and explain what they think a court would decide at a final hearing. In contrast to arbitration, the evaluator’s view is not final and binding but gives the parties an indication of the likely outcome in the hope of nudging them towards a settlement.

Where the court building can be stuffy, crowded and pervaded with tannoy interruptions, private hearings tend to be much more comfortable, always confidential and away from the media spotlight, and are usually held within a much shorter timeframe. Parties are also guaranteed that their private FDR judge will have read all the papers and that they will have the full day to dedicate to settling the case. The relatively new “one couple, one lawyer” model (in which one advisor gives their view to both parties) is currently being explored by some family law professionals and may become a more popular alternative depending on the type and complexity of the issues at play.

Private FDRs are, in the view of the family team at Kingsley Napley, now increasingly the norm and we see a much higher rate of settlement at private FDRs than in court-based FDRs for all the reasons given above. They should not just be used for big money cases. The extra cost incurred in paying for your judge is often an enormous saving compared to the time spent litigating after a failed court FDR.

Given the current shortcomings of the family justice system, parties should be open to exploring options away from court. Not every option will be suitable for every family but the alternatives must be considered both at the outset and throughout the case as they will very often provide a quicker, more convenient and cost effective solution and most crucially can help to reduce conflict.

Liam Hurren associate at Kingsley Napley.