First published by FTAdviser on 31 January 2023.
According to recent data from the Ministry of Justice, 33,566 applications for divorce were made between April and June 2022, the highest rate for a decade.
Whether a short-term spike following the introduction of “no-fault divorce”, or a temporary anomaly as a consequence of couples waiting for the latter, the family court system simply cannot cope.
Clients can be left waiting months for court hearings, or worse they may be told at the eleventh hour that no judge is available to hear their case.
Family solicitors have responded to the increasing demands on their clients and the courts by engaging with a variety of other methods to resolve all aspects of a separation under the umbrella term “alternative dispute resolution”.
Not only are these options – many of which have existed in the dispute resolution sphere for years – often cheaper and quicker, but they will also help to relieve the court of the current backlog and allow it to focus on cases of genuine urgency and need.
Clients will have different priorities, since every case is different. Some clients’ relationships will have broken down irreparably, while others may have separated amicably and simply want to move on with their lives with the minimum of fuss.
As advisers, we know the importance of discussing clients’ goals at the outset and co-ordinating an approach that involves their wider team – from financial planners to divorce coaches, therapists and tax experts.
A holistic approach will leave clients feeling empowered and informed to make decisions and much more in control of the process.
Mediation
Mediation is a good option for those clients who are able to engage with their ex-partner but may still need a steer towards consensus. Mediation involves an independent third party – the “mediator” – who is usually, but not always, a qualified family solicitor, independently guiding the conversations to help your client and their former partner to reach a decision.
Mediation is only viable when both parties are willing to engage in the process. It is often a quick and cost-effective way to resolve matters and can take several forms
The mediator is unable to provide any legal advice during the process, nor are they able to make a decision on behalf of the parties. Your client may therefore want to seek legal advice to supplement the process, to ensure the direction of travel and outcome are fair and reasonable.
Mediation is only viable when both parties are willing to engage in the process. It is often a quick and cost-effective way to resolve matters and can take several forms.
Most mediation sessions are one hour to 90 minutes long, held either in person or remotely (although arguably the former is much more effective), and attended by the parties and mediator only.
If your client or their spouse is uncomfortable being in the same room together – whether in person or remotely – then it is possible to attend “shuttle mediation”, where the mediator will spend time with one party and then relay the information to the other, moving between rooms, with a view to eventually getting everyone together.
“Hybrid mediation” involves both parties’ solicitors attending with their clients but ultimately taking a back seat and advising away from the main discussions.
The downside of mediation is that there is not a fixed timetable beyond the commitment to the next meeting, and so the process can become drawn out if one or both parties lose interest.
The decision is also not binding, and so either party is able to renege on the agreement after being given the opportunity to seek legal advice. In that case, it is back to square one.
Negotiations through solicitors and the ‘unbundled’ retainer
It is always an option to continue negotiations through a solicitor. A common misconception is that instructing a solicitor means that a divorcing couple will invariably end up in court. That, however, should generally always be a decision of last resort.
The first step will be for the parties to exchange full and frank financial disclosure and to resolve any related queries.
Negotiations can be conducted over the telephone for more rapid progress, or in writing or at a roundtable meeting – which frequently does not involve a round table and is conducted in separate rooms. If there is a roadblock, the issue might be referred to mediation or arbitration (see below).
This method is useful for clients who want to remain at arm’s length from their spouse, or for those who need more handholding to navigate their finances and those of their partner but still believe a dialogue is achievable within the clear framework that solicitor correspondence can represent.
A common misconception is that instructing a solicitor means that a divorcing couple will invariably end up in court. That, however, should generally always be a decision of last resort.
It does, of course, incur more costs as a solicitor will be acting on their behalf. It is also possible to instruct solicitors on an “unbundled” basis, where the client manages the process and has overall responsibility, but the solicitor provides ad hoc advice as and when needed.
If your client is on good terms with their partner despite the breakdown of their marriage, it may be possible for them to reach an agreement directly between themselves. This will unquestionably be the cheapest option for your client as they will have avoided instructing a solicitor or other family practitioner to assist with the discussions and conduct the negotiations.
For cases involving complicated assets or a non-disclosing spouse, direct discussions would not be recommended without, at the very least, a solicitor advising in the background to help the client make informed decisions.
Private hearings
If your client is already engaged in court proceedings, they may have expressed dissatisfaction with the length of time between court dates and the lack of time afforded to their matter, given the current pressures the system is under.
The key stage in any formal proceedings is the financial dispute resolution appointment. This hearing is where a judge will give the parties a non-binding indication as to a likely outcome that will inform subsequent negotiations both on the day and moving forward.
It is becoming increasingly popular for couples to instruct a private tribunal – usually an experienced barrister – in this way to act in the judge’s capacity. The benefits are multiple: a dedicated tribunal with the whole day afforded to the case, with sufficient time to read in and absorb all the material, and heard in much more comfortable surroundings than that of the court, usually the barrister’s chambers.
This hearing is conducted on a without prejudice basis, so it does not bind any judge presiding over the matter at final hearing. Most cases usually settle at or shortly after this hearing, and so while there is an associated cost for the parties, it can often be an expedient way of resolving a matter or moving it swiftly towards a final hearing.
Arbitration
Arbitration is another form of tribunal that moves the entire proceedings, or a discrete issue, into the private sphere. An arbitrator – either an experienced barrister or retired judge – will be instructed, usually by agreement, and they will then determine the outcome.
Flexibility, speed and control are the principal benefits, and arbitration can address one point or the entire case.
As with a private FDR, the tribunal will have properly set aside time to read all of the case papers and their diary cleared to only deal with the matter before them.
While the parties do have to pay for the additional cost of the arbitrator, as well as their own representation, the matter can be timetabled between the parties to suit them and move as fast as practicable.
As with a private FDR, the tribunal will have properly set aside time to read all of the case papers and their diary cleared to only deal with the matter before them.
Depending on the number and complexity of issues, it is also possible to arbitrate “on paper” only, which can resolve any impasse and allow a matter to proceed quickly, whether it is being arbitrated in part or in full.
Collaborative law
This process involves your client and their spouse each instructing “collaboratively trained” solicitors to advise them jointly at a series of roundtable meetings. The fulcrum of collaborative law is teamwork and transparency, with key information shared between both parties freely.
Collaborative law can be effective if the parties agree to work together but need the process to be that much more managed than in mediation.
Should the discussions fall apart and the matter go to court, both parties will have to instruct new solicitors, so clients must be invested in the process for it to work.
Collaborative law remains an unsung model of ADR, mainly because of the popularity of mediation and the high risk to the parties if they cannot reach agreement. If used correctly, however, it can be a powerful and cost-effective tool.
Which form of ADR is best for your client?
Clients may be overwhelmed by the number of options available to them. It is therefore important that they seek advice – both financial and legal – as early as possible to help triage their case and decide which route is best for them.
Solicitors will only recommend attending court when cases have no prospect of achieving a resolution on a voluntary basis.
It is only possible to embark upon and successfully manoeuvre within these options if both parties are engaged and share a common goal of reaching an agreement without the court’s intervention.
However, where there is willing, a bespoke approach can be created to offer clients a flexibility to match that of their existing advisers, and which can only benefit the separation.
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