11 December 2015
Alternative Dispute Resolution: Mediation, Arbitration and Private Hearings
Find out how to keep proceedings on your finances on divorce out of the courts, with Paralegal Alexander George’s guide to alternative dispute resolution.
With government cuts to the court system’s funding, alternative dispute resolution is becoming increasingly popular among couples going through a divorce.
While it is still important to ensure that any agreement you reach is approved by the court, there are a number of ways to reach a financial settlement without needing to attend at court.
Mediation is a non-binding process whereby you discuss issues and try to reach a resolution through a qualified family mediator. Family mediation can address all issues surrounding your separation, including arrangements for the children and division of assets.
It is now compulsory in the majority of cases for mediation to be attempted before any application is made to the court in family proceedings.
If successful, mediation can help you and your ex reach a full agreement that can be recorded in an order that a judge can approve. This will then have the binding effect of a court order. Even if you aren’t able to resolve everything, mediation can help reduce the number of issues. So if you end up in the court arena your costs should be reduced with fewer points in contention.
If you and your ex agree to resolve matters using the collaborative process, you will each need to instruct a solicitor who is trained in collaborative law.
You, your ex and your respective solicitors will then meet together in a series of meetings known as four-way meetings. The objective is to see if, with the guidance of your advisors, you and your ex can reach an agreement. It is also possible to invite other experts such as accountants or financial advisors to attend the meetings to assist with expert advice.
Arbitration was only recently extended to family disputes. It involves you agreeing to be bound by the decision of an independent adjudicator, who is usually a family law solicitor or barrister. Arbitration is similar to court proceedings, however, arbitration allows more flexibility with you and your spouse able to agree your procedure and choose who you would like to decide the dispute. Arbitration cannot be used to resolve issues regarding children.
Arbitration can be much quicker than court proceedings as it isn’t reliant on court resources. Arbitration can be tailored to each case. It also guarantees your case will be determined by a family law practitioner – which is not always the case in the courts.
In addition, with arbitration you do not have to argue about your disputes in front of the arbitrator. Arbitration is equally open to you and your spouse reaching an agreed settlement independently.
It is possible to use a hybrid of the arbitration and court proceedings approaches. Where court proceedings are slow or become inappropriate, you might be able to opt to arbitrate the remainder of your issues.
Private Financial Dispute Resolution Hearings
A Financial Dispute Resolution hearing, often known as an FDR, is a court hearing that is designed to help you reach an agreement without the need for a final contested hearing.
It’s possible to dip out of court proceedings and substitute the Financial Dispute Resolution hearing with a ‘private FDR’. For a private FDR, you and your ex must consent to appear before an agreed independent third party (usually a family law barrister) who acts as a judge. They will give you an indication of how the matter would be determined by a judge at a final hearing and help reduce your issues.
When you reach an agreement in respect of financial matters, by whichever means, it is important that it is made into a court order known as a ‘consent order’ and approved by the court. The financial terms are then binding on you and your ex for the future.
At Slater and Gordon, our family law team are ready to advise you on the best way to resolve your family dispute and have experience in both court proceedings and alternative methods of dispute resolution. Call us on freephone 0800 916 9055 or contact us online and we’ll be happy to help.