Insights

#Keep it Out of Court


27/11/2013

This week, Resolution (the professional association for family lawyers) is holding its second annual Family Dispute Resolution Week. Its aim is to increase public awareness of alternative ways to resolve disputes between separating couples without resorting to court proceedings.

Most people know somebody affected by family separation or divorce. Relationship breakdown can be one of the most difficult things a family has to cope with and can be distressing and traumatic for all those concerned. It is a common misconception that a court room confrontation is inevitable.

According to a survey commissioned by Resolution, 81% of those surveyed believed that children end up being the main casualties of divorce, 40% believed that divorces can never be without conflict and 45% believed that most divorces involve a visit to court.

However, what are the alternatives?

Mediation

Mediation enables couples to resolve issues together with the assistance of a trained mediator. It is not a form of relationship counselling. Instead a mediator will help a couple to decide how to bring an end to their relationship and resolve the issues flowing from that. A mediator cannot give legal advice, (although many are trained family lawyers), but will talk through the issues with the couple to help them work out what is best for them and any children they may have. Most couples who go through mediation find it helpful to take independent advice and support from a specialist family lawyer during the process and their lawyers will also ensure that agreements reached in mediation are fair and legally binding.

Collaborative Law

In contrast to mediation, under the collaborative law process, each party appoints their own specially trained collaborative lawyer. Couples are able to then work together with their lawyers at their side to resolve their dispute with the benefit of support and legal advice from their advisers during each meeting. Where necessary, it is also possible to call in other experts such as family counsellors, child specialists, accountants and pension experts to advise and assist the couple in exploring the options available to them.

The couple and their lawyers are required to sign an agreement that commits everybody to try to resolve the issues without going to court and prevents the lawyers from representing the couple in the event that the process breaks down and the matter has to be determined within court proceedings. As a result, all involved are committed to finding the best solutions by agreement, rather than going through the court process.

Family Arbitration

Family arbitration enables a couple to obtain a decision on any financial or property issues arising from the breakdown of their relationship in the event that they are unable to reach an agreement. In essence, it is an alternative to asking a judge to make a decision within court proceedings.

Family arbitration was developed to enable couples to resolve their financial disputes more quickly, confidentially and in a more flexible and less formal setting than a court room. It is possible for an arbitrator to be asked to deal with all the financial issues arising or alternatively limit their involvement to one or two discrete issues.

Upon the basis that there is flexibility and a final decision can be made much more quickly this model can be much more cost-effective than court.

Solicitor Negotiations

Mediation, arbitration and collaborative law are not necessarily appropriate for all couples. However, solicitors can also negotiate agreements on their client’s behalf. It is important that each party is represented by specialist family lawyers who are able to understand the issue involved and ensure that a fair agreement is achieved.

Going to Court

Sadly, in some cases, the processes described above are not always appropriate and court proceedings are inevitable, particularly if, for example, one party seeks to hide their assets, will not engage in the process or third party evidence is required. However, although the court will fix a timetable for the conduct of the case, it is still possible to negotiate or mediate in parallel in order to try to avoid conflict, significant legal costs and delay. If an agreement cannot be reached a judge will impose a decision which he or she considers to be fair. As with any litigation, there is always the risk of an unfavourable decision being reached.

For anyone facing the breakdown of their relationship, it is a period of great uncertainty. It is essential that they seek specialist legal advice at an early stage to identify the most appropriate forum to resolve the issues arising as swiftly, constructively and as cost effectively as possible, thus enabling them to move on with their lives.

Gordon Dadds