Why alternative dispute resolution (ADR) is gaining traction in family law matters - Wayne Lynn

Many couples simply wish to resolve their differences privately, without having to go to court with the stress and additional acrimony that this can generate. For these reasons, alternative dispute resolution (ADR) has begun to develop at quite a pace. There are several types of ADR, including mediation, early neutral evaluation or private financial dispute resolution (FDR).

Mediation is a process where the couple will meet, either in person or virtually via a video call, together with a specialist mediator, in order to discuss and hopefully resolve their differences with the mediator’s assistance. Mediators are impartial but assist the parties in exploring common ground, as well as looking at ways to compromise in other areas to reach an overall agreement.

Mediation is not suitable in all cases. Sometimes the acrimony between the couple simply does not allow mediation to work. In other cases, one party may be vulnerable where, for example, there has been an abusive relationship.

It is often the case, particularly at the outset of the dispute, that couples adopt entrenched positions, which can make finding a compromise extremely difficult. In such cases, it can be helpful for an experienced, specialist family lawyer to be jointly instructed by the parties’ legal representatives to provide a considered opinion in respect of one or more areas which are contentious and which can often focus people’s minds on reaching a sensible compromise at an early stage which could lead to a significant saving on costs and this is referred to as early neutral evaluation.

Private FDR, is a unique hearing within the court managed process, where the judge will hear all offers and counteroffers made and will then go on to assist the parties in resolving the case by giving a clear indication as to how the court would deal with the case at a final contested hearing.

All three of these routes help to resolve matters without going to court, and a private FDR completely takes the case out of the court system. There are several advantages to this namely speed, as it can often take many months from the first court hearing until the FDR takes place. With a private FDR, these can be arranged on a date and time convenient to the parties and takes place away from the courtroom at a venue chosen by the couple themselves.

It also gives control over the situation, as the couple choose the identity of the FDR ‘judge’, who is usually a very experienced barrister or solicitor who has specialised in family law for many years. Due to limitations in the court system, judges usually have several cases listed on any particular day, whereas the private FDR ‘judge’ will only deal with that particular case and will be available for the entire day.

A couple seeking to avoid court altogether but being unable to resolve their differences can also appoint a specialist arbitrator, who is once again usually a very experienced family law specialist or (sometimes) a retired judge, who will read all of the relevant documents, hear from the lawyers and the parties themselves, and then make a decision which will then be incorporated into a court order.

There are several advantages to arbitration of the court system, most of which are very similar to the advantages of private FDR’s. Speed is a key advantage. Resolving financial matters within the court system, from start to finish, usually takes well over a year. With arbitration, this can be done within six months or less.

It is important to note that increasing numbers of cases involving parents wishing to make arrangements for the children are being dealt with by specialist arbitrators. Where it is universally recognised that delay in resolving any dispute concerning children is usually harmful to the child, this can bring great peace of mind.

Alternative dispute resolution may still be a new concept to people. It is still a developing area but one which is going to continue to gain traction. Senior members of the judiciary have publicly encouraged couples to engage in ADR and the lawmakers are increasingly making it a stipulation that couples must demonstrate what efforts they have made to resolve matters out of court. If one or both parties are seen to have unreasonably failed to attempt to resolve matters via ADR, then the guilty party may be ordered to pay the other’s legal costs.

Wayne Lynn is a partner at Silk Family Law.