Dispute resolution is a fundamental part of a family lawyer’s job. The old acronym of ADR no longer rings true. Dispute resolution should not be “alternative” – it should be the focus for family law practitioners, with a court application one of last resort, rather than a first step in seeking to resolve a dispute. This is even more so in view of the significant pressures under which the courts operate, and the delays to which our clients are subject when court proceedings are in process.
Applying to court is, thankfully, no longer the sole option available to clients who cannot reach an agreement directly with their ex-spouse, partner or other parent to their children. It may be the most appropriate way forward for some disputes; others may more easily be resolved by following a collaborative route, attending mediation, or organising a private adjudication of the dispute with an arbitrator or neutrally instructed lawyer. These “alternative” routes are often less costly for the clients and help to retain communicative relationships with the other party, which is especially key if they will continue to parent together. They also allow the clients to remain feeling that they are invested in the process, rather than handing the decision to a judge who has minimal time to determine their case.
Collaborative law involves both parties attending meetings with their respective solicitors, with all negotiations taking place in an open forum. The focus is on discussing matters openly, and for both parties to be involved in the construction of the resulting settlement or agreement, which works specifically for them. The collaborative process is particularly suited for those clients who appreciate the need for legal advice and involvement, but do not want to engage in a litigious process.
Mediation, on the other hand, is a voluntary process which seeks to provide cooperative and willing participants with a structured and secure environment to consider the consequences of their separation, and seek solutions in relation to their family disputes with the assistance of a neutral third party. This confidential space allows them to make their own informed decisions as to how they might navigate the next stage of their lives. The mediator must act entirely impartially and in an even-handed and balanced manner. A mediator in this family context is facilitative in nature and they will not be required to intervene unless it is necessary to refocus individuals or move discussions along. Mediation is particularly helpful in cases involving couples that have modest assets or minimal funds to meet legal fees, or in circumstances where parents are seeking to minimise conflict so as to maximise their chances of being successful co-parents following separation.
In view of the delays in the courts, a parallel private process is increasingly popular. Deciding early on to adopt a private process can shorten the time required to reach agreement and can minimise costs. The parties agree to appoint an independent adjudicator to help them to resolve matters, either by way of non-binding evaluation (a private FDR) or binding arbitration. For both, there will be a private hearing, with an experienced family lawyer appointed as the neutral evaluator or arbitrator. If a non-binding approach is agreed, the evaluation provided by the lawyer will focus settlement discussions and encourage negotiation. In an arbitration setting, the arbitrator will give a binding determination, which is then converted into a court order. Both options are particularly popular when confidentiality is key, or where there are such delays in the court process that the parties elect to “go private”.
Considering DR (dropping the “A”) options with your clients early on is key, to allow them to make informed choices as to how to resolve their dispute. Popular media continues to portray the court route as the only option, so our role is to educate clients as to all of their options.
Helen Fisher is a managing associate and Camilla Hooper is a senior associate and mediator in the family team at Cripps Pemberton Greenish