The Common Objections and Barriers to ADR and How Family Lawyers can Overcome Them

As family lawyers we all understand the benefits of using Alternative Dispute Resolution (ADR) to help our clients reach solutions, but unfortunately ADR methods can often be misunderstood, meaning we often face barriers when talking to clients about ADR.

Some of the more common objections include cost concerns, lack of understanding and a general worry about settling outside of the court system.  Due to the ever-growing backlog of cases in the family courts, pressure to increase the use of ADR to settle family disputes is set to continue.

The two main forms of ADR in Family Law are Arbitration and Mediation, and both provide a whole host of benefits for the clients and law firms involved. Yet, firms will be familiar with the hesitancy of clients when presented with these alternatives. They can be overcome and in doing so you’ll achieve a more streamlined outcome for both the clients and your firm.

Mediation

Mediation is becoming a more common practice and yet disputing families will regularly overlook its usage. This is due to a variety of factors that range from client to client. Every family is unique and presents different challenges to the firms involved. Broadly speaking, these challenges can be quantified and overcome.

Reluctance to Compromise

Mediation is something that only works if both parties engage in the process, and sometimes coming to a compromise may seem impossible for the disputing parties. In this situation, battling it out in court may feel like the best way to reach a resolution, but sometimes by explaining the current court backlog and the cost savings of going through mediation can help to persuade a couple to at least give it a try. An experienced mediator can help a disputing couple to negotiate to a position that may feel in line with what both sides are looking for.

Resolutions have Already Been Tried and Failed

Very often by the time families seek legal advice, they will have already tried to resolve their problems privately and they may therefore feel that mediation won’t take them any further towards a resolution. Sometimes couples can be persuaded to try mediation by explaining that the Mediator is there to help take their private negotiations to the next level, ensuring that all the details have been thoroughly covered and addressed. Mediators have been called ‘agents of reality’, helping disputing families come to terms with the future they are facing, as difficult as it is for all involved.

Mediation is Unnecessary, the Trial will Handle it

Going through a separation is tough and some couples will have already come to terms with the fact that their lives will be changed dramatically both emotionally and financially at the point they seek advice. Mediation is often misunderstood, and some couples just simply believe that only the court can help them reach a legal outcome. Educating clients on the process of mediation is critical to help clients engage willingly and in the process.

As of writing this article, mediation remains a voluntary endeavour, yet that could be changing. There have been calls to make the practice compulsory, citing the strain on the court system as a leading factor in this decision. The CEO of National Family Mediation, Jane Robey, said:

“A Mediation Information Assessment Meeting (MIAM) held with only one party is never going to provide a separating couple with information to make an informed decision about whether or not mediation might work for them.

Those who oppose compulsory family mediation continue to say it is a voluntary process, and that this is one of its strengths. It certainly provides reassurance to participants that they can withdraw at any time and the decisions reached are owned by them and not the mediator. However, when families reflect after a successful mediation, and the money, parenting, and property agreements they’ve managed to reach, the fact that it was voluntary is never mentioned in their positive feedback. You cannot compel people to reach agreement. What you can do is provide the forum for a comprehensive discussion about the areas of disagreement and that mere act is often enough to narrow the chasm between them.”

Arbitration

Despite the numerous benefits of Arbitration, for both the clients and law firms, facing hesitancy is common. This is largely because of the lack of awareness that comes into play when presenting this option. However, in understanding the problems before you face them, you will be fully equipped to navigate the barriers.

Pre-arbitration Procedures Not as Clear as Civil Procedure Rules

Civil Procedure Rules are a rigid system that can provide clients with a level of reassurance in an otherwise emotionally difficult and alien process. Pre-arbitration procedures on the other hand are far more open and flexible, which is exactly to the client’s benefit, as it allows them to start the Arbitration process from a more positive position.

Lack of Trust in Good Faith Agreement

This is largely a subjective issue that all family lawyers will face at some point. Disputing families are often already emotionally distraught and frustrated, yet it is crucial to emphasis the necessity of a Good Faith Agreement. It acts as reassurance to both parties that will receive an outcome as closely aligned to their own as possible.

Can’t Challenge the Arbitrator

Clients sometimes believe that the Arbitrator can’t be challenged, and that their view is final, but it is important to note that an Arbitrator can be challenged given the following considerations:

• The tribunal lacked substantive jurisdiction.
• There were irregularities in the proceedings which would justify the setting aside of the award.
• The arbitrator erred on a specific point of law.

The Arbitrator’s main aim is to help the clients in a timely, affordable, and measured manner.

Now is the Time to Embrace ADR

Arbitration is at the very forefront of the legislative landscape, as in November 2023, the UK Government confirmed that the new Arbitration Bill had begun its legislative journey into becoming enshrined in law. It confirms the need for more law firms to adopt this out-of-court settlement solution.

A contributing factor that may have led to this sudden call for bill amendments is the fact that 40 percent of cases from January to March 2023 had no legal representation for either party. The sooner law firms adopt arbitration and mediation, the sooner the court backlog will ease, and families will settle their disputes.

The UK’s law sector is a global leader, continually updating and massaging our legislation to reflect modern issues and needs. To ensure that our firm remains at the forefront, now is the time to embrace mediation before you have to play catchup in the wake of compulsory enforcement. It will also give your firm authority in the sector, as clients will be able to look back at your previous work and see the benefits for themselves.

With all this in mind, law firms looking at remaining at the edge of UK legislation should begin adopting ADR methods. This, in conjunction with the continued backlog in the family court system, makes arbitration the future of dispute resolution.

Written by By June Venters KC, Founder and Managing Partner of Venters.