Court is not an easy option. If you can find an alternative way of sorting things out you should do so. Alternative Dispute Resolution (ADR) (also called Dispute Resolution (DR) or Non-Court Based Dispute Resolution (NCDR)) can be a range of things, from simply sitting down over a cup of tea with your ex to draw up a parenting plan to the following more formal approaches.
- Mediation
- Arbitration
- Couples Counselling
- Collaborative Law
- Family Group Conference
- Round Table
- Private FDR
More information about each form of ADR is set out below. Don’t forget that many forms of ADR, including mediation, can be tried even if a court case has already started. It is rarely too late to try and find an alternative. The law has recently changed and, even if matters do proceed to court, it is expected by judges and magistrates that both parties will have undertaken at least one type of NCDR. If this has not happened and you are not exempt from NCDR, the court can require parties to explain why not and it also has the power to order one party to pay the costs of another.
MEDIATION
Mediation can help you reach an agreement about disputed issues arising from your separation (e.g. children, finances, communication). Mediators are impartial, do not advise you, and do not impose a decision upon you and mediation is voluntary. However, if you do decide to go to court you will have to demonstrate that you have considered mediation by at least one of the parties attending a Mediation Information and Assessment Meeting. If you are on a low income, or if your ex is on a low income you may be able to qualify for free mediation through legal aid. Currently, the Ministry of Justice is also offering £500 towards mediation which involves child arrangements. Your mediation service will be able to give you more information about this. Please ensure that your mediator is fully accredited. Mediation often works best if you have some legal advice alongside it. If you would like more information or to book a mediation please go to www.midmediation.org.uk or www.NFM.org.uk or www.familymediationcouncil.org.uk
ARBITRATION
Arbitration is voluntary and is a form of dispute resolution which takes place outside a formal court room. The parties enter into an agreement under which they appoint a suitably qualified person (an arbitrator) to adjudicate a dispute concerning finances or children. They agree to be bound by the reasoned written decision of the arbitrator. The arbitrator’s decision is called an Award (finances) or a Determination (children).
Arbitration resembles court proceedings. An arbitrator will produce a decision after hearing the evidence and each party’s arguments in support of their case. By contrast, a mediator helps a couple reach their own settlement through agreement. Arbitration and mediation can complement each other.
The arbitrator may consider that mediation would benefit the couple and would then suggest this. Mediators can also recommend arbitration if mediation breaks down or if an agreement is reached in mediation on most but not all issues. It is therefore possible for a mediator to refer a specific part of a dispute to arbitration, in order to resolve a sticking point during the course of mediation.
Unlike court proceedings arbitration can deal with a single issue. See IFLA for more info.
COUPLES COUNSELLING
It might seem an odd thing to include but couple counselling (often called marriage guidance) can help you work together as you end your relationship. See Relate for more info.
COLLABORATIVE LAW
Both parties instruct lawyers trained as Collaborative Lawyers who work together in an attempt to achieve a resolution and are less restricted in their dealings with the other lawyer than would normally be the case. If an agreement can’t be reached the Collaborative Lawyers drop out and the parties have to instruct fresh lawyers for any court case that follows. See Resolution for more info.
FAMILY GROUP CONFERENCE
Often used where there are child protection concerns or where a family unit has a particular need for ongoing support (perhaps because a member of the family has a disability). See the videos by the Family Rights Group here.
ROUND TABLE
Parties and their lawyers agree to set aside a day to come together and attempt to negotiate a settlement in an attempt to avoid court. Most often used where there are significant assets or a particular need for privacy.
PRIVATE FDR
Parties pay an experienced lawyer, retired or part time judge to carry out a “Financial Dispute Resolution Hearing” for them with the aim of reaching a settlement about finances. A FDR is a hearing where a judge hears a summary of the parties positions and gives guidance to them about what outcomes are likely or sensible. Most often used where there are significant assets or a particular need for privacy.