A new era for alternative dispute resolution in family law?

The court process is stressful, expensive and fraught with delays. There is a feeling that its inherent adversarial nature risks compounding and increasing family conflict rather than resolving it. ADR processes, then, seem an obvious solution. Aside from largely being more time-efficient and cost-effective ADR is, by design, more flexible and adaptive to the needs and priorities of the separating couples.

Indeed, there has been an increased uptake in some ADR processes, such as mediation, where separating couples seek to negotiate a settlement with the assistance of a trained, neutral third party. For those cases where agreement is not possible, the uptake of private 'FDR' hearings and arbitration, a process where separating couples select an independent arbitrator to make a final and binding decision, have incrementally been on the rise. Yet, most family practitioners will attest that ADR has so far failed to gain the traction that was envisaged when the Family Procedure Rules 2010 were introduced. Despite those rules requiring that the court must consider, at every stage in proceedings, whether ADR is appropriate, it is uncontroversial that family courts continue to dominate the dispute resolution landscape for couples in dispute.

How then, might Covid-19 play a part in shifting this landscape from the under-resourced and over-subscribed family courts towards a wider use of ADR in family law?

During these challenging times governments, organisations and individuals alike have been forced to find creative ways to adapt to new circumstances, whether that's working out how to staff hospitals during a global pandemic or how to throw a birthday party over Zoom. It is to be expected that, in many cases, the adjustment will not be seamless.

Indeed, like many institutions across the globe, the family courts in England and Wales are struggling to keep up with the unique challenges brought about by the Covid-19 pandemic. Guidance from the President of the Family Division is clear: the family courts intend to 'keep business going safely'. The need for matters to progress is recognised, with remote hearings taking place over telephone, Skype or similar alternatives, where practical and just to do so. However, there is no hard and fast rule, and inevitably many separating couples will be disappointed to learn that their hearings have been adjourned to a later date, sometimes unspecified. Widespread delays and inconsistency only serve to make separating couples feel more anxious and 'at sea' than ever.

Against this backdrop, ADR processes have never looked so appealing. Crucially, many of the processes themselves are inherently adaptive. In fact, the very hallmark of ADR may be said to be its flexibility. By keeping matters outside of the courtroom, separating couples can select and drive a bespoke process that accommodates their needs. Generally speaking, they can make choices as to how they want the process to run, who should be involved, what timescales are appropriate, where it should take place and what are the relevant issues to be determined.

It is the flexibility of ADR that makes it so well-placed to meet the needs of families during the Covid-19 pandemic. Mediations, arbitrations and other ADR processes are, on the whole, running smoothly. Virtual meetings can be easily organised so that separating couples can press ahead with resolving their disputes, circumventing the inefficient formalities of the court system. Given the inevitable backlog of cases in the family courts once the fog of this pandemic lifts, ADR processes are likely to offer couples a far quicker path to resolution. Separating couples can sooner move on and leave the past behind them. Alternatively, should they choose to, separating couples can agree to put matters on hold and fix an agreed date to revisit, in the safe knowledge that they are not at the whim of an uncertain court timetable.

From a cost perspective too, ADR is advantageous. Practitioners are generally mindful that the fact that processes are taking place virtually should be reflected in their fees.

ADR evidently has a lot to offer, during the pandemic and beyond. There are several ADR processes which have emerged as the most befitting for the unique challenges of resolving family disputes. These are set out below. Naturally, what is right for one couple will not be right for another, and it is a case of finding a process that works to meet the specific circumstances and needs of the separating couples.

Mediation

Family mediation is a confidential non-binding but highly effective process. It involves the separating couples meeting with a trained neutral third party (the mediator) who facilitates negotiation and seeks to help separating couples reach a workable solution. If an agreement is reached, this can then be converted into a legally binding settlement and the couple will have saved lawyers' fees in the negotiation. Those who cannot reach a solution can move on to court proceedings or other forms of ADR in the knowledge this will not prejudice their positions.

Early neutral evaluation / private FDR

In an early neutral evaluation, an independent expert (often a part-time judge or experienced arbitrator or barrister) is appointed to review the available evidence and provide an indication to everyone involved in the dispute of what the outcome might be if the matter proceeds to a court hearing, thereby promoting settlement. The process is confidential and an indication can be obtained on the whole of the dispute, or confined to a single issue, if there is a particular sticking point.

A private Financial Dispute Resolution (FDR) hearing is named after a stage within the court process in financial cases where the judge seeks to encourage settlement. Like in an early neutral evaluation a private FDR judge will give guidance on likely outcomes to assist a couple reaching an agreement. It replicates what a court would do but in a private setting. This has the advantage of giving couples control of when and where this takes place and allows much more time than permitted by the court which in turn increases the chances of settlement. Separating couples increasingly divert from the court system to have a private FDR conducted and this is now positively being encouraged by the court especially during the Covid-19 crisis.

Collaborative law

The collaborative law process encourages people to try to resolve their difficulties in a transparent and non-confrontational 'round table' approach with the help of trained collaborative solicitors. A couple separating will appoint a collaborative solicitor each to reach an agreement. They will be motivated to settle because if they do not do so they will have to appoint new solicitors to represent them. There is a high degree of success in the process as everyone is focused on reaching the best outcome possible for the couple and their family.

Arbitration

Arbitration involves separating couples appointing a fair and impartial arbitrator to determine the issues in dispute. Although arbitration is a voluntary process, once entered into there is a guaranteed binding decision at the conclusion of the arbitration, similar to as in court proceedings. An award made in arbitration is recognized by the court and is then converted into a court order. Arbitration can be determined following a hearing before the arbitrator, or if the issues are suitable, on submission of documents and positions statements alone.

The Covid-19 pandemic spells new challenges for the family justice community, but, with these come new opportunities. It is an unfortunate truth that where agreement cannot be reached, couples will often find themselves in court, spending significant sums on an imposed process with an uncertain outcome. The pandemic, already causing delays and widespread inconsistencies in family courts, only adds to the drawbacks of traditional litigation. For many couples, there is another way. The flexibility of ADR processes makes them uniquely placed to serve families, not only during this unsettling period, but beyond.

Our specialist team of family solicitors has extensive experience of resolving disputes according to the particular aims and circumstances of our clients. For those interested in pursuing a resolution outside of court, our team, which includes a deputy District Judge, an arbitrator, accredited mediators, and collaborative lawyers, can offer a wide variety of services.