Alternative Dispute Resolution (ADR)
In a changing legal landscape there are different ways in which separating couples can resolve issues concerning child arrangements and property/financial matters without having to go to court.
Since the late 1990s mediation has played an increasingly important role in dealing with family law disputes. It has been actively encouraged by the Government and the courts. From April 2014 it is likely that anyone wanting to apply for an order regarding their children and/or property and financial matters, will have to provide evidence that they have tried mediation first. There are several good reasons for this:
- Low costs – most mediators charge less than a solicitor, and if you are on low income or income-related benefits, legal aid is still available (with those mediators that offer it).
- It provides a neutral forum and sets a framework within which both parties and the professionally trained mediator can work towards resolving disputes.
- It enables parties to help reach agreement themselves, within a time frame that meets their needs and without having a decision imposed on them by the court.
- The mediator cannot give either party legal advice but can record agreements reached which can then be incorporated into an ‘open agreement’ or consent order. This is particularly relevant for settlements involving finance/property on divorce or civil partnership dissolution.
Finding a Mediator
Your nearest CAB will have details of local mediators and should be able to tell you which ones offer legal aid. If you already have a solicitor they will refer you to a recommended mediator or mediation company. Alternatively there are various websites available offering search facilities including: http://www.familymediationhelpline.co.uk/find-service.php. Where court proceedings are anticipated if the other party is not likely to co-operate, you need to make sure the mediator you choose can conduct a ‘MIAM’ Mediation Information & Assessment Meeting. (They can then provide evidence of you attending which will be needed when you make your court application.)
Mediation process – a brief overview
Either you can refer yourself directly or through a solicitor, which usually involves filling in a form. Once received, the mediator offers an assessment session either individually or together, to explain more about the process, and costs, gather background details and answer any questions. They can also assess whether either party is eligible for public funding, subject to them producing up to date evidence. If you would like to check yourself see http://legal-aid-checker.justice.gov.uk. If everyone, including the Mediator, agrees that mediation is suitable, mediation sessions will then be arranged. The number of sessions needed will vary according to the complexity of the matters to be resolved, but are typically 2-3 sessions for ‘Child Only’ cases, 3-5 for ‘Property & Finances’ and 4-6 for ‘All Issues’ cases. If mediation is not suitable, you should consult a solicitor or your local CAB.
Where the parties need to resolve financial/property matters the mediator will request that both provide financial disclosure within a set time. This usually involves completing a fairly lengthy form and providing appropriate supporting documents, such as: recent property valuation(s); mortgage redemption statement(s), bank statements, wage slips, schedule of monthly outgoings, pension valuations, etc. Once sufficient disclosure has been provided, the mediator will then arrange further sessions within which the parties will be encouraged to negotiate an agreed settlement. They will also recommend each party obtains independent legal advice so they know in general terms what they should be entitled to. If agreement is reached, the mediator will produce a Memorandum of Understanding setting out the agreed terms and liaise with either party’s solicitor to have this incorporated into a legally-binding ‘consent order’.
However mediation is not compulsory for the other party, so if they are unwilling, or mediation is deemed unsuitable/breaks down, then the mediator will confirm this in writing and, for MIAM cases provide an FM1 form.
This is a purely voluntary process which some parties prefer to use particularly when there are relatively significant assets to deal with. Here, each party appoints their own collaboratively-trained lawyer and you all meet together to work things out face to face. The lawyers are present throughout the entire process to provide support and legal advice. All collaborative lawyers are specially trained by Resolution – the specialist body for family solicitors in England and Wales. To search for a collaborative lawyer go to: http://www.resolution.org.uk/findamember/
Both parties and their lawyers sign an agreement that commits them to trying to resolve the issues without going to court and prevents their lawyer from representing them in court if the collaborative process breaks down. That means all are absolutely committed to finding the best solutions by agreement, rather than through court proceedings.
The meetings, often called four-way meetings, will usually take place at the offices of either party’s lawyer. Sometimes only a couple of meetings are needed; in other cases several more. The agenda followed at these meetings will be set by you and your former partner. Once an agreement is reached your lawyers can put it into effect, if it needs to be made into a Court Order your lawyers can do that for you.
This can be a very worthwhile process, provided both parties positively engage with it. On the downside, it can be expensive, and if negotiations break down and court proceedings ensue, each party would need to instruct another lawyer.
Another and relatively new form of ADR for property and financial matters is family arbitration. This can provide a versatile, swift and effective way of resolving disputes where the parties are unable for whatever reason to arrive at an agreed outcome, and where they wish to avoid the stress, delay and uncertainties involved in going to court. This is because an Arbitrator can make a decision that is legally binding on both parties, using the law that applies in England & Wales. Again all arbitrators are specially trained and members of the Chartered Institute of Arbitrators (http://www.ciarb.org/).
Both parties agree on which arbitrator to appoint and an instruction form is completed. In most cases a meeting is then set up between the parties, their solicitors and the Arbitrator (typically offered free of charge) to discuss the case and agree a timetable within which it is to be resolved.
The same arbitrator will then deal with all stages of the case and both parties have a major say in how the proceedings are run, e.g. whether any expert evidence is needed such as a company valuation, the instruction of a pensions actuary etc, and where/when any hearings take place. This process enables couples to resolve disputes in a more flexible and less formal setting. The arbitrator can deal with all of the financial issues or limit his or her involvement to one or two specific aspects that are in dispute (e.g. spousal maintenance). A decision can even be made in writing.
This flexibility and the fact that a final decision is made relatively quickly does mean that arbitration can be more cost-effective than court. However there are some situations where arbitration might not be suitable, for example if there is a difficult point of law to resolve; where a third party needs to be involved or your ex is not providing full disclosure.
For more information on this and all forms of ADR we recommend you visit the Resolution website: http://www.resolution.org.uk/ and click on ‘Alternatives to Court’.
Negotiations with Solicitors
If ADR is not considered suitable or either party refuses to engage, it may still be possible for an agreement to be negotiated with the help of one or both parties’ solicitors. Generally this is dealt with by correspondence, but round table meetings can be set up if considered beneficial.
When dealing with financial/property cases, both sides would need to exchange sufficient disclosure (see above) before embarking on negotiations. If full agreement can then be reached, this is either recorded in an ‘open letter’ or where there is a related divorce/civil partnership dissolution, a consent order is drawn up and approved/signed by all concerned.
Click the link below to download this fact sheet.