A Short Guide to Alternative Dispute Resolution
Two of the most common concerns clients express at the initial meeting with our solicitors are the potential legal costs which will be incurred and the time and energy required to resolve their situation. The media does not help assuage these concerns by regularly splashing details about the costs incurred in multi-million-pound divorce cases involving celebrities and tycoons. They are not representative of the majority of people who get divorced. In fact, if clients are given access to all of the possible options, it does not have to be expensive or as emotionally draining. Court is not the only way to resolve your financial claims and it should only ever be considered as a last resort.
There are many different options of dispute resolution available to separating couples, including:
- Direct discussions;
- Negotiations through solicitors;
- Collaborative law;
- Private hearings; and
If you and your partner are able to discuss matters between yourselves and reach an agreement regarding the divorce, financial division and/or arrangements for children, then this will avoid the cost of having a third party, be it a solicitor, mediator or judge, involved in the decision-making process. It is advisable for you both to take legal advice before and/or during these discussions so you can understand how the court might approach each issue as this will help facilitate a fair outcome. If you would still like the legal advice of a solicitor as to whether the agreement is within the bracket of what a court may order, your solicitor will still need each of you to provide your full financial circumstances to do so. The agreement should be fair and reasonable and allow each of you to meet your needs. A solicitor will also have to draft the relevant documentation which will be submitted to the court.
If you cannot reach an agreement directly with each other, it can be helpful to have a mediator assist you in a safe, dialogue-focused environment with a view to doing so. That mediator is usually a specialist family law solicitor or barrister. At Burgess Mee we have three mediators: Peter Burgess, David Lillywhite and Henrietta Thomas (Peter is also an accredited mediator). Mediation can move at a speed you are comfortable with but separating couples usually require 3 – 4 sessions, each lasting anywhere from an hour to an hour and a half (although there is no standard length).
Mediation is often more cost effective than engaging in negotiations through solicitors or court proceedings because you and your partner will do all the hard work in the sessions. As long as each person is engaged with this process and is willing to work towards an amicable solution it can be a relatively quick way of achieving a sensible outcome. You will then be referred with any agreement you reach back to your solicitor to draft the relevant documentation, as above.
If you cannot reach an agreement directly between the two of you or in mediation (or if your relationship is such that even attempting such discussions would not be fruitful, sensible or safe), you should consider instructing a solicitor to engage in formal correspondence with your partner/their solicitor to begin a voluntary (i.e. not court ordered) process of negotiation. This will likely involve you each preparing and exchanging full financial disclosure of your respective assets, liabilities and income with the opportunity to clarify anything you are not sure of. Once you have a full understanding of the family finances, your solicitors will be able to discuss the settlement options with you and negotiate on your behalf. Negotiations can either be through exchanging emails or letters and can sometimes also include a meeting (sometimes referred to as a “round table”) to try and reach an agreement. This is not always a straightforward process but if a timetable can be agreed at the outset, it can create a structure which will minimise costs and maximise the chances of a settlement.
This is a process by which you and your partner each instruct ‘collaboratively trained’ solicitors who will advise you jointly at a series of round-table meetings.
This process can help focus your minds as a requirement of entering the collaborative process is that both parties sign up at the beginning to a participation agreement that precludes either of you using the same solicitor in court proceedings if the collaborative approach is not successful. At that point, both parties would need to instruct new solicitors to take their matter forward. Engaging new solicitors will inevitably incur additional costs and work, and therefore the intention is to incentivise you both to try to collaborate and reach an agreement cost effectively.
Private financial dispute resolution hearings / Early Neutral Evaluation
These can be particularly useful if you have reached an impasse in solicitor negotiations and you are on the court track and want greater control of the timetable and are proceeding with your separation voluntarily.
Private hearings occur in both children and financial matters. They are most common when there is a financial issue to determine and you and your partner agree to have a ‘private Financial Dispute Resolution’ hearing as a replacement for its court-based equivalent (which is primarily focused on negotiation). Once financial disclosure has been exchanged, a private judge (usually a solicitor or barrister) is agreed and appointed by you and your solicitors, and your legal teams will have the opportunity to put forward your positions. The judge (also referred to as ‘the tribunal’) will then give an indication as to what they think the likely outcome would be if the matter was being heard by a judge.
The advantage of a private hearing is that it can be conducted on a date to suit the parties, away from the spotlight of the court but with the opportunity to listen to an individual with judicial experience and knowledge without incurring the full time and cost of the court process. The judge’s indication is not binding but it is a process designed to help you focus on achieving a potential outcome.
If you are able to reach an agreement, your solicitors can then draw up an order to be submitted to the court for approval. However, if you cannot reach an agreement then the private judge has no power to make an order, and you will then have to consider alternative options for resolving your case. A significant numbers of cases are resolved at FDR and so with the added benefit of a dedicated judge for the entire day, this is increasingly a pragmatic and proactive choice for individuals wishing to resolve their matter quickly. It is a dying myth that these kinds of hearings are the preserve of the wealthy or that only an extremely senior barrister will suffice when in fact this is simply not the case. A more junior barrister will still have a significant amount of experience that they can bring to bear on their indication, making the process affordable for most levels of matter.
Arbitration is another form of private ‘tribunal’ but here, the decision of the arbitrator will be binding upon the parties (although a recent case has confirmed that arbitrations are still capable of being appealed to the court) but again the benefit is that you have a much greater level of control over how your matter is timetabled. Arbitration is an entirely voluntary process, but it can be a sensible choice where the expense of retaining a private judge is outweighed by the speed with which a matter – or a discrete point, such as a disputed letter of instruction – can be resolved. In formal court proceedings a matter may take anywhere from 8 months to a year to conclude (if not more, given the current pressure court diaries are under), whereas arbitration can be used to bring a matter to completion within 3 – 6 months provided both parties engage sensibly. Subject to the complexity of the issues, a matter can even be arbitrated ‘on paper’ (i.e. without an in-person hearing) for further efficiency.
If you both choose to arbitrate then you will agree an arbitrator to adjudicate on the dispute. This individual will hear the evidence in the case in the same manner in which a judge would consider it and then make a decision.
Whilst arbitration may not initially seem like the cheapest option as you will need to pay for the arbitrator, it is likely to be less expensive than litigating the process through the court to a final hearing because the arbitrator is also able to make case management decisions and because your case will be their only focus, a matter (or issue) can often be heard over a much shorter length of time, resulting in further savings.
Which is right for me?
There are many ways in which to resolve the issues that arise upon divorce be that in relation to the divorce itself, the finances or arrangements for children. Early advice should always be taken so your solicitor can give an informed opinion as to which process is the most appropriate for you. Contested litigation can be expensive, time-consuming and often brings with it a degree of emotional uncertainty. Exploring the other options from the outset will give you the best possible chance of resolving any dispute as quickly as possible and cost-effectively.
For more information, please contact any of the team on firstname.lastname@example.org with your enquiry.
Written by: Kirsty Morris, David Lillywhite & Robert Micklem