InsightsInsight - Dispute Resolution - POSTED: July 14 2017
What is alternative dispute resolution?
Alternative dispute resolution (ADR) refers to a method of dealing with a dispute which does not involve going to court.
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There a number of forms of ADR and in the family law context, the most common types are:
- Collaborative Law
- Round table meetings
What is Mediation?
Mediation involves a trained third party assisting a separated couple to come to a resolution between themselves.
What can mediation be used for?
Mediation can be used to deal with any dispute between a separated couple but it is mostly used to deal with financial issues and issues relating to children.
How does mediation work?
Often a mediator will speak with each party separately to introduce themselves, perhaps by telephone, and thereafter will meet with both parties together. If one party has a particular objection to sitting in the same room as their ex-partner, the mediator can engage in shuttle mediation, where the parties will be given separate rooms and the mediator will move between them. Particularly when dealing with financial matters, before the mediation commences, both parties will be asked to provide evidence of their respective positions, which in financial cases would usually be evidence of their financial situation. This may include an exchange of things such as bank statements, pension valuations and property valuations. Matters will often not be resolved after just one meeting and it may be necessary for the parties to meet a number of times to reach agreement on all points.
Will the mediator give me legal advice?
The mediator is not there to provide either party with legal advice, and indeed should not seek to do so. The mediator should remain independent and unbiased and should seek to facilitate agreement between the parties only. At any point during the mediation either party can seek legal advice from an independent solicitor. How is an agreement recorded? Once an agreement has been reached, this will be drafted into a memorandum of understanding. This document will set out all of the point of agreement and should also set out the background to the case and explain the basis upon which the agreement was reached. Is the agreement legally binding? Any agreement reached will not be legally binding and it will be necessary for the agreement to be drafted into a consent order for approval by the court. This can be done by a solicitor. Consent orders can be used in cases concerning finances and those relating to children. What is Collaborative Law? In contrast to mediation, collaborative law involves both parties and their lawyers coming together to try to resolve the issues between them.
What can collaborative law be used for?
Collaborative law can be used to deal with any issue between a separated couple including both children and financial matters.
How does collaborative law work?
Collaborative law is conducted by specially trained lawyers and to engage in the process, it will be necessary for both parties to instruct a collaborative lawyer. At the outset of the process, both parties and their respective lawyers sign up to an agreement which states that the parties will not go to court to resolve the dispute between them. By signing this agreement both parties recognise that if they are unable to resolve matters within the collaborative process, they will each need to instruct new lawyers to deal with any court proceedings. The aim of signing the agreement is to ensure both parties and their lawyers are absolutely committed to resolving matters by agreement, rather than through the courts. Much of the collaborative law process involves the parties and their lawyers engaging in face to face meetings at which settlement is negotiated.
Is the agreement reached legally binding?
Any agreement reached will not be legally binding and it will be necessary for the agreement to be drafted into a consent order for approval by the court. This will be carried out by one of the parties’ lawyers and will be approved by both parties before being submitted to the court.
What are Round Table Meetings?
Round table meetings involve both parties and their lawyers coming together to discuss and seek to resolve the issues between them.
What can round table meetings be used for?
Round table meetings can be used to deal with any issue between a separated couple including both children and financial matters. How do round table meetings differ from collaborative law. Unlike collaborative law, round table meetings do not involve the parties signing an agreement not to refer their dispute to court if negotiations fail. For this reason, cases conducting using round table meetings are often referred to as “collaborative light” as the process is largely similar (the parties and their lawyers engage in a number of meetings) but recourse can be had to the courts if necessary.
Is the agreement reached legally binding?
If any agreement is reached during round table meetings, it will not be legally binding and it will be necessary for the agreement to be drafted into a consent order for approval by the court. This will be carried out by one of the parties’ lawyers and will be approved by both parties before being submitted to the court. What is Arbitration Arbitration is, in essence, a private adjudication of a dispute, where the parties jointly agree to appoint their own private judge. The judge has to be a member of the Institute of Family Law Arbitrators (IFLA) whose members include several senior family law barristers, QC’s and retired judges (including retired High Court and Court of Appeal judges). The parties can therefore select a judge based upon the complexity of the issues and value of the assets involved.
What can arbitration be used for?
Currently, arbitration can only be used to resolve disputes concerning finances, property or child maintenance. It cannot be used to deal with the arrangements for children, such as whom they will live with, nor can it be used to deal with a divorce itself.
How does arbitration work?
Before an arbitration begins, both parties must sign an arbitration agreement which, amongst other things, confirms that they both agree to be bound by any decision the arbitrator makes. Arbitration can be dealt with in a number of ways and it is up to the parties (with the benefit of their lawyers’ advice) and the arbitrator to agree on the appropriate format. Sometimes, where the dispute is not overly complex, arbitration can be done on paper without the parties or their lawyers needing to attend any meetings with the arbitrator. In more complex cases, arbitration can be akin to court proceedings in that the parties and their lawyers attend a “hearing” and the parties may be called to give evidence. It is not unusual for parties to instruct barristers to represent them at an arbitration, in much the same way as they would with a final hearing within court proceedings.
How is the decision recorded?
After considering all of the evidence, whether on paper or following a meeting/hearing with the parties and/or their legal representatives, the arbitrator will make an award setting out his decision on the matter at hand.
Is the arbitrator’s award legally binding?
Arbitrator’s award is legally binding by virtue of the agreement signed by the parties at the outset of the arbitration process. Once an award has been made, it will need to be converted into as Order for the Court to approve. This will give both parties an enforceable order of the court should future disputes arise. In the case of financial matters, it will also provide protection from future financial claims by their ex-spouse.
What if I do not agree with the arbitrator’s decision?
There are very limited circumstances in which an arbitration decision can be appealed and this would usually be if you think there has been a legal error or serious irregularity.
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