The ultimate aim of Alternative Dispute Resolution (ADR) is the amicable resolution of conflict.
Alternative dispute resolution within family law is the process of resolving a dispute without taking it to court. The ultimate aim of alternative dispute resolution (ADR) is the amicable resolution of the financial settlement of a marriage or agreement as to Child Arrangements. Often, court proceedings can be a long process, and with that comes increased costs. Alternatives to the family courts, such as ADR, can be far quicker in resolving any conflict and significantly less expensive.
What is ADR in Family Law?
Alternative dispute resolution in family law is particularly relevant as family matters are often extremely acrimonious and can have long-lasting effects.
As opposed to other civil matters, family cases often require the parties to continue to interact with each other over a long period of time, for example, until children reach adulthood. ADR is therefore an important resource for solving family disputes with scope for future cooperation and communication between the parties.
Types of Alternative Dispute Resolution in Family Law
There are many types of alternative dispute resolution in family law. At Newtons Solicitors, our specialist family law team will help you to explore which option will be most suitable for you and your family. Types of alternative dispute resolution in family law include:
- Collaborative Law
- Negotiation Through Lawyers
At a basic level, mediation involves the use of a neutral third party to facilitate negotiation and discussion between two parties who are in dispute. It is common for both parties to sit in one room with the mediator, however, there is also ‘shuttle’ mediation, where the parties are in separate rooms and the mediator ‘shuttles’ between them.
Mediation as an alternative dispute resolution option in family law can be advantageous if you are looking for a swift resolution to your conflict, particularly when compared with the court system, which is often beset with delays and backlogs. While mediation is not free, it is a much more cost-effective option for finding a resolution to a family dispute. There are options for financial help for those who are on low incomes or where children are involved. What’s more, mediation also helps open channels of communication, making future conflicts less likely.
A disadvantage to mediation is that the mediator is unable to offer any legal advice, and any decisions made are not legally binding. It relies on those involved to stay true to the decisions that are made. Following mediation, any agreement reached would need including in a Consent Order to make the same legally binding upon the parties.
Collaborative Law was originally developed in the United States of America. Collaborative Law as a type of alternative dispute resolution involves each party having their own legal representative. The parties agree not to go to court to litigate, but instead resolve their issues via their legal representatives, and often this includes a wider, multi-disciplinary approach including accountants, actuaries, social workers or therapists.
The advantages of Collaborative Law are that it is inherently flexible, and can fit around the schedules of the parties, rather than having fixed hearings requiring court attendance. Like mediation, Collaborative Law also aims to create amicable communication between both parties, which can aid future communications.
The main disadvantage is the cost involved in instructing various multi-disciplinary agents, where necessary, and the potential duplication of costs if the matter does end up in court.
Family Law Arbitration
Arbitration is different to other types of alternative dispute resolution as it is guaranteed that a decision in relation to the dispute will be made. Family law arbitration involves an experienced family practitioner, such as a solicitor, barrister or retired judge, acting as a fair and impartial arbitrator. Each party will be invited to put forward their position with the arbitrator, ultimately making a final decision, known as an award.
One of the main advantages of family law arbitration is the control the parties have over the timings and methods of any hearing, and the choice of arbitrator. The arbitrator will make the final decision, which can be a relief in cases where those involved have struggled to negotiate. Additionally, arbitration is often much quicker than waiting to take a dispute to court.
The main disadvantage is that a decision at arbitration cannot be appealed by the parties if they do not agree with the outcome. A further limitation is the lack of power the arbitrator has to order disclosure, thus arbitration may not be suitable if one party is suspected to be hiding assets.
Before making an application to court, attendance at Mediation, via a Mediation Information Assessment Meeting (MIAM) is required and this is in respect of applications relating to children or finances. There are certain circumstances where MIAM attendance is not required, for example in cases of domestic violence or previous MIAM attendance, however MIAMs are a useful doorway into the ADR arena. A mediator will discuss your matter with you and the other party, if invited, and they may be able to suggest if mediation or an alternative dispute resolution for your family law case could be suitable for resolving your dispute without costly litigation.
Examples of where ADR may be needed
It is not always straightforward to decide which type of ADR to pursue in order to settle a family dispute. It is positive to note that many ADR options are inherently adaptive, so can be altered to suit individual cases. Here are a few types of family law matters where ADR may be the most appropriate option.
Situations involving the custody of a child or children can arise, whether or not it involves a separating couple. These are often highly sensitive cases and must be treated with the utmost care and attention to the needs of the children. Mediation or Collaborative Law are often the preferred alternatives to the family court that aim to resolve any concerns and disagreements about child custody. These types of ADR seek to amicably improve communications between parents/carers and allow them to decide on the best course of action. Though, this is not always the best option in cases of domestic violence because ADR requires a relatively equal distribution of power between both parties.
Divorce and separation can be one of the most stressful situations for couples due to the emotional nature of the proceedings. Negotiating a divorce financial settlement is an integral stage in the divorce process to achieve an equitable division of assets. These negotiations can cause disputes and prove to be lengthy and costly if taken to court. Utilising ADR as an alternative to family court can aid more amicable communication, be more cost-effective and often helps settle the dispute quicker than if it were taken to court.
Here at Newtons, we want to find the best possible resolution for you and your family. We can help you identify if alternative dispute resolution for a family law dispute is the right choice for you and guide you along the way. For further information, contact your local Newtons office, or submit an enquiry form via our website.