Alternative Dispute Resolution

Alternative Dispute Resolution ADR: What does it mean and what are your options?

As the court system becomes increasingly overwhelmed trying to deal with the impact of the Covid-19 pandemic we are being told in no uncertain terms that there will be delay and being encouraged in every case to consider the use of ADR (alternative dispute resolution).

So, what is ADR?  Is it the same as mediation or is it different?  Where does arbitration fit?

The answer is that ADR encompasses both of these and more.  To assist we have tried below to give an explanation of the various different avenues which you can explore outside of the court arena both in respect of financial disputes and those relating to children:

1. Negotiation through solicitors – it is often forgotten when people talk about resolving matters using ADR that family law solicitors often resolve matters through correspondence or meetings with the other party and/ or their solicitor and without the need for court.

2. Mediation – this involves the use of a third party (a mediator) to facilitate discussion and negotiations. It can take different forms, for example, all parties can be in the same room or the parties can be in different rooms with the mediator moving between them (“shuttle mediation”).  The general rule is that you must consider mediation before you make any court application and, at least, attend an information meeting (“MIAM”).

There are some limits to mediation as it requires both people to “buy in” to the process and a mediator’s view is not binding.

Mediators are still working through the Covid-19 pandemic and making use of appropriate technology.

3. Family arbitration- this is different to mediation as the arbitrator’s decision is binding. Again, it is possible to deal with this using video link or telephone.  We recently published a blog about this which you can see here.

4. Private FDRs- due to delay in the family court, even before Covid-19, there has been a rise in the use of the use of these. FDR is short for Financial Dispute Resolution hearing.  The is the name given to the negotiation hearing which takes place as part of a traditional financial application to court.  In these types of hearing the judge will express a view which, whilst not binding, often helps the parties reach an agreement.

A private FDR mimics this type of hearing but the parties pay for a family law specialist (usually a recently retired judge or senior barrister) to oversee it rather than using a court allocated judge.  The advantage to this is that they do not end up in a situation where a judge has not read the papers or is unable to give the case their full attention because of other pressures in their court list.  There is also often more flexibility in terms of dates, length of hearing and so on.  Private FDRs can be conducted remotely.

5. Your kitchen table- we should not forget that many couples are actually able to reach an agreement between themselves, perhaps with the assistance of a neutral friend or family member (subject to that being possible with current government guidelines). Parties should, however, always take some specialist family law advice before entering into any agreement so that they fully understand the legal implications

Once you have agreed

Reaching an agreement is often the hardest part but it is not the final step.

To avoid all of your hard work being undone by one party seeking to change their mind in the future any financial agreement should be drawn up into a court order and submitted to the court for approval.

With disputes regarding children an order may or may not be necessary but thought should be given as to how parties may adjudicate disputes in the future.  Inevitably with children the position is constantly changing and there has to be an element flexibility and cooperation.