Mariel Cruz looks at the many ways that you can resolve a family dispute without recourse to court proceedings.
Non-court dispute resolution (also known as alternative dispute resolution) refers to the variety of ways in which you can resolve a family dispute without recourse to court proceedings. We set out below a summary of some of the most common methods of non-court dispute resolution:
This is where you and your ex-partner reach an agreement without the support of a solicitor. This may be suitable where both parties are willing to reach an agreement amicably, and the issues are straightforward. However, although a DIY divorce may seem to be the simplest (and cheapest) option, divorce can be a complex process and there are risks to a DIY divorce that must be considered. For more information on DIY divorces see our article “DIY Divorce” – a thrifty saving or a false economy?.
Solicitor negotiation involves the appointment of a solicitor to negotiate on your behalf. It is important to note that instructing a solicitor is not the same as issuing court proceedings. They will provide you with legal advice and will negotiate with your ex-partner’s solicitor (or with them directly if they do not have a legal representative) to reach an agreement. The costs involved in solicitor negotiation vary depending on the complexity of the issues and the length of the discussions involved, however, it tends to be more expensive than mediation (below) due to the increased involvement of solicitors.
Mediation is a voluntary and confidential process which involves the appointment of a trained and impartial mediator who helps you and your ex-partner reach an agreement. In mediation, you and your ex-partner have control over the outcome – the mediator will not make any decisions for you but instead will help you come to your own agreement. If you have children, Child Inclusive Mediation also gives children (of a suitable age) the opportunity to meet with the mediator to express their feelings and wishes. Any agreement made via mediation concerning financial arrangements will become legally binding once it has been made into a Consent Order by your solicitor and has been approved by the court. There are some cases where mediation may not be appropriate, for example where there are allegations of domestic abuse or harm to a child.
Similar to mediation, collaborative law allows you and your ex-partner to discuss issues in a supported environment. The process involves you each instructing a collaborative trained solicitor. You will then take part in multiple four-way meetings where you will work together to reach an agreement. At the outset, you and your solicitor will sign an agreement that commits you to trying to resolve the issues without going to court and prevents your solicitor from representing you if the collaborative process breaks down. This means that there is strong incentive for everyone to find the best solutions by agreement, rather than through court proceedings. You will also have the opportunity to work with other professionals, such as a financial advisor or family consultant, who can assist you as part of the collaborative process. Collaborative law may not be suitable in cases where there is a history of domestic abuse or where there is poor communication between the parties.
Arbitration is a voluntary, private process whereby you and your ex-partner appoint an arbitrator to make decisions about all or parts of your case. An arbitrator is impartial and can make decisions about finance and property disputes and some children matters. Arbitration is most similar to the court process however it can often be quicker than going through the court system. Importantly, an arbitrator’s decision is legally binding with limited scope for appeal.
If you would like to discuss any of the above in more detail, our team of specialist family law solicitors would be more than happy to have a chat with you about your situation. Please contact us via email or telephone to arrange an initial consultation.