Last updated on April 28th, 2020 at 11:52 am
1. What is alternative dispute resolution?
Alternative dispute resolution covers a range of processes that are used to resolve a conflict, dispute or claim including family, employment, business, housing, personal injury, consumer and environmental disputes out of court. These processes provide an alternative to going through court hearings to decide on a dispute and writing up a contract or agreement for you.
For the divorce/dissolution process, effective dispute resolution gives you and your partner a way to settle issues and division of assets after the breakdown of a marriage/civil partnership quickly, allowing you to move on with your new lives. This can provide a more flexible contract or agreement than a court decision.
2. How can you request dispute resolution?
Either you or your partner can suggest that you undergo family dispute resolution, but you must both agree to it before it can take place. Mediation, collaborative law or arbitration processes without the full willingness or backing of your partner will not work. All processes work to come to an agreement between you, but you won’t be able to do this if one of you is unwilling to go through the process.
3. What happens during the alternative dispute resolution process?
There are many different processes involved in family dispute resolution, but they are all conducted out of court and provide a much easier, more amicable way to complete a separation or divorce.
They all involve resolving your disputes with your partner, usually with solicitors and an independent third party who will help each of you to liaise and come to an agreement. Sometimes this can be more cost effective than the court process. What are the three ways to settle a dispute out of court?
Dispute resolution encompasses many different approaches and processes that can be used to reach a divorce/dissolution settlement agreement without the lengthy, time-consuming and costly process of going to court.
There are three forms of dispute resolution which offer methods of settling a dispute out of court:
Support with mediation
Family mediation is a voluntary process that requires you and your partner to have discussions that are usually face-to-face but can be conducted in separate rooms, during which a trained mediator will help you to try and reach your own agreements.
Once you have decided to separate, a mediator can help you work through all of the consequences of the marriage/civil partnership breakdown. This can include issues about children, money and property and the mediator will provide a constructive platform for you and your partner to talk it through.
However, a mediator cannot provide legal advice which is why it’s important to use a lawyer to seek advice and assistance on the discussions taking place and to make sure the agreements reached are fair and appropriate.
Agreements reached through mediation are usually set out in a ‘memorandum of understanding’ but remain confidential and cannot be referred to in future court proceedings. Financial agreements are usually drafted by lawyers after the mediation process has ended to secure the terms in a binding court order.
Some key advantages of family mediation include:
- Achieving a financial settlement quicker
- Forming a better long-term relationship between you and your partner as you have not had to fight for your assets in court
- Can be more cost effective than financial proceedings
- Keeping control of your settlement through making your own decisions, rather than the court deciding for you
- Going through a private and confidential process
However, it’s important to remember that mediation still takes time and costs money and, if you fail to come to an agreement, you will have to start over again or go to court after all.
Mediation agreements are not usually legally binding, which means the agreement is flexible and can be changed to suit you and your partner. However, the agreement can be made legal through a consent order, which is a legal document drawn up by a solicitor that sets out what you have agreed during mediation. It will then be sent to the court during the divorce/dissolution process and put before a judge for approval, making it legally binding.
While collaborative law involves family lawyers, it is very different to the role they play in traditional divorce/dissolution proceedings. You and your partner must both find individual family lawyers who are collaboratively trained who will assist and advise each of you separately to negotiate a settlement agreement.
A participation agreement is signed at the outset by both lawyers and parties and commits you to resolving all issues away from the court arena.
Solicitor correspondence is kept to a minimum because all issues are openly discussed at ‘four-way meetings’ using agendas fixed by you, and the process is very client led. Unlike mediation, lawyers are present in the meetings.
The collaborative law process involves:
- Negotiating with your partner in a series of face to face meetings and other correspondence
- Attending meetings between you and your lawyer and your partner and their lawyer
- Signing an agreement setting out the principles on how you wish to resolve issues
- Agreeing that, if the process does not work, you will instruct new lawyers
Once an agreement is reached, a consent order is submitted to court for approval by a judge as part of the divorce/dissolution process. You will not ordinarily need to attend court or see a judge at any stage if you chose this process.
Even if you are not collaborating or mediating, this does not mean to say that you need to take your case to court. A solicitor can correspond on your behalf with your former partner or his/her solicitor in arms-length negotiations. They can also arrange for round-table meetings to take place in the office to discuss all issues with a view to reaching a resolution. In a round table meeting both parties and their lawyers would be present. While a round-table meeting is more positional than a collaborative four-way meeting, it is important that both parties feel they are being listened to in a respectful way and we will help keep the discussions focused on the issues and as constructive as possible.
If agreement is reached by solicitor negotiations, the terms can be made legal and binding by a court in a consent order submitted to court as a paper exercise. It should not be necessary for you to go to court or meet a judge if you choose this method of dispute resolution.
As with other dispute resolution methods, you and your partner will need to agree to go through the arbitration process together. You will need to appoint an impartial arbitrator who must be legally qualified and registered to act as an arbitrator in England and Wales.
The arbitrator will review all evidence surrounding your case and apply law to decide on how your assets should be split. Unlike court proceedings, when you choose arbitration, you can decide exactly what you want the arbitrator to consider. This could be everything that’s in dispute or one or two specific issues that you have been unable to resolve through other methods.
In addition, you can choose an arbitrator with the relevant experience to help you with resolving your issues. This doesn’t apply to court proceedings, during which you cannot choose the judge or their specialism.
Some advantages of arbitration include that they are:
- fast—your dispute will be solved much more quickly
- confidential—both parties agree to keep all documents and the outcome confidential
- flexible—you choose the date, time and venue on the day the arbitrator makes a decision
- decision on paper—you can decide to have your case decided on paper without having to attend court
- the arbitrator’s decision is final.
4. What happens if you’re unable to come to an agreement?
Sometimes, an application to court is inevitable. This may be due to an emergency situation to protect property and other assets from being disposed of, or where a party needs immediate spousal support to make ends meet and the other party refuses to assist voluntarily.
There will also be some cases where agreement cannot be reached, and negotiations break down. Alternatively, you may not trust your former spouse/civil partner to provide open and honest information about his or her finances or it may be that your former partner is seeking an unrealistic outcome and is stubbornly refusing to budge from his or her position.
See our page on financial remedies which sets out the process for this type of litigation. Most cases are concluded within twelve months of a court application being filed. Emergency remedies are, of course, dealt with much sooner.
Judges have wide discretion in how they apply the law and there are a range of reasonable possible settlements that make the outcome of litigation impossible to predict with any certainty. The downside of litigation is that it is usually more expensive and takes longer to complete than other dispute resolution methods and the final order or contract may not be to either party’s liking. Settling out of court enables a couple to retain control over their decisions, even if they have to make certain compromises.
Costs orders are rarely made during family law cases. The general rule is that you each pay your own legal fees. The exception to this is where costs sanctions are imposed, for example, because a party fails to comply with a court order or does not give open, honest and frank disclosure of their financial circumstances.
If it transpires that your former spouse/civil partner has misled the court as to their financial position, then any order made can be set aside to facilitate a fairer outcome. Costs sanctions will almost certainly follow in these circumstances against the offending party.
5. Why use alternative dispute resolution?
When looking to end your marriage or civil partnership, alternative dispute resolution might not always be the appropriate solution – this depends on your specific case.
However, if you want to reach a financial settlement quickly and without the costs involved in court proceedings, it can provide a range of alternatives to reaching a financial settlement during an emotionally draining period. In cases where children are involved, it gives you the chance to communicate effectively and in the best interests of your children, minimising the impact on them.
6. What are the benefits of alternative dispute resolution in negotiating a financial settlement?
Alternative dispute resolution provides many advantages over court proceedings when it comes to achieving a financial settlement. Divorce/dissolution is a highly emotional event and alternative dispute resolution is much more likely to help you and your partner reserve any remaining good will and shouldn’t escalate the conflict in the same way court proceedings can. This is particularly important where children are involved and an ongoing relationship between you and your partner regarding their care is required.
In addition, these processes are more flexible around the needs of the individuals, allowing you both to have a greater input into what you are both looking to get out of the agreement and your needs going forwards.
7. Is alternative dispute resolution legally binding?
At the end of each process, you can ask a lawyer to draft up an agreement which can be secured in a binding court order that does not require you to attend court.
8. How long does alternative dispute resolution take?
The length of time it takes for you and your partner to come to an agreement will depend on your case, what you want to get out of it and the issues to consider.
All three alternative dispute resolution processes are much quicker than court proceedings.