How to avoid court in family disputes

Divorce lawyers typically spend a great deal of their time helping clients resolve their family law disputes without the need to attend court.

This is not because solicitors advise clients to “give in”, but because going to court in family disputes should always be the last option – not the first.

So why are so many people who are faced with a family law issue so motivated in going to court? Responses vary, but typically, clients believe that a judge can provide definitive answers or an answer which one or both parties feel they are compelled to comply with.

However, dispute resolution can provide several alternatives that may work more effectively than taking the case to court. In this article, family law partner Sarah Thompson discusses the options available to clients.

Mediation

A mediator is an impartial, independent person whose role it is to facilitate discussions between two people who have been in a relationship. The mediator can help you make decisions for the future, including the living arrangements for your children and how best to divide the family finances.

A mediator cannot provide legal advice, so clients will need to have their own solicitor throughout the process to advise on the law. Your solicitor will be able to guide you through the process and is there to advise on whether expert evidence is required (e.g. in relation to the value of particular assets, such as property, businesses and pensions) as well as the fairness of the overall settlement.

Mediation is a voluntary process, and this in itself means that decisions made have more “stickability” because the parties involved have reached the decision together and it is therefore more likely to work. This is especially so in issues concerning the living arrangements for children.

The advantages of mediation are plentiful. Firstly, it is quicker and less expensive than going to court. Secondly, the parties involved can maintain control over the decisions. Thirdly, it can help communication between the parties, which is vitally important if children are involved.

Whilst decisions reached through mediation are not legally binding, this in itself encourages both parties to explore various options for settlement as they know that what they say will not come back to bite should an agreement not be reached and you end up in court. If you do reach an agreement, this is drafted into a court order for a judge to approve.

Collaborative Law

If you prefer to resolve matters with your solicitor present, then collaborative law is something to consider.

Collaborative law is a series of four-way meetings made up of you, your ex-partner and your respective solicitors. All present need to be committed to achieving the best outcome for the family – as opposed to the individual.

Private Financial Dispute Resolution (FDR)

Whether you are in court proceedings or not, you can agree to instruct a judge or experienced family law barrister to give their opinion on what they believe a judge would order if your case went to a final hearing. At the end you get an indication, which can be used to help reach an agreement – or at the very least narrow the issues between you.

You pay to have a dedicated judge to review your case for the day (or half-day if the issues between you aren’t too extensive). You are not huddled in court corridors, trying to discuss sensitive issues with your barrister whilst waiting for your case to be heard along with several others, wondering how much time the judge will be able to give you or whether they have had chance to read all the papers for your case.

With a private FDR, you have the luxury of time and that in itself can be worth every penny.

Arbitration

Arbitration is very similar to the court process but has the advantage of both parties agreeing upon the arbitrator (a specialist lawyer), at a time and venue of your choice. As with private FDRs, you will pay the arbitrator’s fees.

The difference with arbitration, as opposed to mediation and private FDRs, is that the decision of the arbitrator is binding because both of you will have agreed beforehand to be bound by their decision.

The Certainty Project

This is a new hybrid model that combines mediation and arbitration. Clients can seek to agree issues with their ex-partner in the mediation forum and any issues that are not agreed upon can be decided by way of arbitration.

Any relationship breakdown can be difficult and fraught with emotion, but adopting an alternative approach can help lessen the pain, stress, delays and costs involved in court proceedings.

There is no doubt a time and a place for court judgments, but it should not be assumed they are the only option.

For more information on this topic or any other family law issues, contact Sarah Thompson.

Contributing Advisors