Dispute resolution (DR) in family law matters
Dispute Resolution is resolving family disputes without going to a final court hearing. It used to be known as ADR, alternative dispute resolution. But increasingly out-of-court methods are primarily used and are no longer alternative.
There are so many benefits of resolving matters outside of final court hearings. These include:
- Saving of legal costs
- Often quicker
- Avoids the strongly aggressive, adversarial environment of a court hearing
- Invariably helps coparenting in the future
- Mostly allows the parties to determine their own terms rather than imposed by a court
- Can often be tailor-made, as to when it occurs, the style of disclosure given and other distinctive wishes of the couple and other family members
- Invariably has better screening and awareness of power imbalances in negotiations
- Can work also with lawyers involved
- Works best in parallel with receiving specialist legal advice
- Evidence suggests outcomes reached out-of-court are more effective and more satisfactory
There are a few cases which need a final hearing. There are a number of cases where there is a benefit in commencing court proceedings with a view to negotiating in parallel. Some cases do not need court proceedings, although the final settlement may often wisely be included in a final court order.
Lawyers at iFLG strongly recommend the use of dispute resolution at appropriate times and with appropriate safeguards. We will discuss this with you throughout.
There are various methods to consider.
Mediation involves a neutral third party helping the couple to reach an agreement. It may be about children or finance or other family disputes. The mediator may also be a lawyer but if so will not give personal advice to either. A lawyer mediator may use their legal experience to help the couple together if they are struggling to reach an outcome by recommending possible ways to settle. This is often known as directive mediation, a style of mediation which we recommend. Mediation is often conducted face-to-face or remotely. It may be suitable at any stage in the process of reaching agreement. Mediators conduct their work according to a code of practice.
Arbitration is a form of adjudication, as if by a judge but out-of-court. Family arbitrators are specialist family lawyers who are then trained as arbitrators. The outcome will invariably be upheld by a court unless there has been a serious flaw in the procedure. The parties can appoint their own arbitrator. This is a significant advantage because it can be an arbitrator with distinctive knowledge or experience of the matters or area of law in dispute. It can be conducted on the papers or at a form of meeting or hybrid. The arbitrator is involved in the preparation for the arbitration, giving an indication of what information and documents would be needed for the arbitration. It can be significantly quicker than the court process. Lawyers would invariably be involved in making representations on behalf of clients to the arbitrator. The only additional element is the fees of the arbitrator which are usually saved by the lesser time taken. There is a distinctive form of international family law arbitration, set up by iFLG founder, David Hodson, and please contact him via the link on his profile for more information.
Early neutral evaluation is conducted both in court and out-of-court. In court it is known as the financial dispute resolution, FDR, hearing. Out-of-court it is sometimes known as private judging although this is misleading. It is conducted by a senior and experienced lawyer. They give an indication, an evaluation, of what would be likely to happen if the case went to a final hearing. There is often a very high success rate of many settlements. The indication given is not binding in law. This is one of the advantages. Some feel happier with this approach. As with arbitration, it has much flexibility and adaptability in choosing the person who will conduct the early neutral evaluation, how and when it will occur and the style of documentation and approach. As with arbitration, lawyers would be involved in saying why a particular outcome is the right and appropriate one.
Collaborative law is a process where both parties instruct particularly trained lawyers to conduct their case. It is invariably dealt with entirely through meetings with everyone present in a very open environment. The major disadvantage is that if either party commences proceedings or wants to do so, both parties have to change lawyers and instruct new lawyers. It brings an end to the collaborative process.
Lawyer negotiation remains one of the best ways of resolving a family dispute. Each party has the benefit of their lawyer giving advice to them throughout including on the merits of any possible settlement. They look after the interests of their clients. Lawyers would then produce a consent order at the end. Lawyer negotiation can also work hand-in-hand with other forms of dispute resolution, particularly overcoming distinctive problems or logjams to a settlement.
One of the skills of the lawyer is knowing which form of dispute resolution is best for each client at each stage of the process towards a settlement. If you would like more information about this or discuss the possibility of using any of these dispute resolution forms, please get in touch with us.
