Resolving family disputes
Most countries around the world encourage parties to resolve family disputes without using courts, or at least to avoid final hearings. Out of court processes usually achieve a settlement more quickly, minimise legal costs and conflict. This is often known as Dispute Resolution (DR) or Non-Court Dispute Resolution (NCDR) previously known as Alternative Dispute Resolution (ADR), but increasingly these are primary processes, and are no longer alternative.
There are many benefits of resolving disputes outside court, which include:
- Minimising legal costs
- Speed – most dispute resolution processes are usually quicker
- Avoids the confrontational, often aggressive adversarial environment of a court hearing
- Invariably assists co-parenting in the future
- Parties can largely determine their own terms, on the basis of their objectives
- Processes are flexible to meet the needs, wishes and convenience of the parties
- Processes involve screening, and adjustment for power imbalances in disclosure and negotiation
- The parties’ lawyers can be involved, and out of court processes are most effective when parties receive their own specialist advice
- Evidence shows that outcomes reached out of court are usually more effective and satisfactory
There are very few cases which require a final court hearing. There are a number of cases where there is benefit in commencing court proceedings with a view to negotiation in parallel. Lawyers at iFLG strongly recommend the use of dispute resolution in suitable cases. With appropriate safeguards, most cases are suitable for one of the dispute resolution processes.
Family Court and Non-Court Dispute Resolution changes into effect from 29 April 2024
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Most countries around the world directly encourage resolving family disputes without using courts.¬ This is often known as Dispute Resolution (DR). It covers:
- Traditional mediation in which a neutral professional assists the couple to resolve any dispute, without the mediator giving legal advice. It covers both financial disputes and arrangements for children. It remains common for parties to also be advised by lawyers in the background during the mediation process
- Directive mediation is the same as traditional mediation but if the couple find it difficult to settle and reach agreement, the mediator has the power to indicate possible settlement options to direct towards a fair outcome. This form of mediation is often by experienced lawyer mediators and in 'hard to settle' cases
- Collaborative law occurs when the couple undertake to settle through lawyers without issuing any proceedings unless agreed. If either party then has to issue e.g., because there is no settlement or one spouse is being unreasonable, both have to change lawyers which can be to the disadvantage of some spouses
- Arbitration occurs when a lawyer qualified as an arbitrator acts as a private judge. The advantage is that the arbitrator can be chosen for the required experience or specialisation of the area of the dispute and it is a more flexible and confidential process than going through courts. The parties are bound by the arbitrator’s decision
- Early neutral evaluation is an opinion given at an early stage in a dispute by an experienced lawyer as to what may be the outcome if the case were to litigate. It can save costs and become a good indication of a fair settlement
Lawyer negotiation remains the most frequent form of out of court settlement, with each person having their own lawyer advising and negotiating for them and then drawing up the final settlement order.
Do I have to attend a compulsory mediation information meeting before I commence English family court proceedings if I or the other spouse or parent is abroad
Not always. There are certain exemptions that apply.
What about child abduction cases? Surely mediation is possible?
Experience has shown much success where the parties have the benefit of mediators experienced in child abduction issues, and where the mediation carries on in parallel to court proceedings which occur very fast for the possible return of the child. Outcomes may include agreements about future child arrangements beyond the central issue of the abduction itself. Similarly mediation works very well in relocation matters, when one parent wants to move abroad with a child and the other parent is opposed.
Are there any issues with using Dispute Resolution (DR) in international cases?
Definitely. They must be realistically assessed. Because often several countries, or laws, may be able to deal with the dispute of a couple, it is important to establish certain matters before either commencing any form of DR, or often even suggesting it to the other family member. DR should not be commenced:
- Until jurisdiction has been established i.e., it is known in which country the proceedings will take place
- Until it has been sorted out regarding which country’s law will be applied
- The whereabouts and safety of any abducted child has been ascertained
- The assets which would be required for a fair settlement to be reached have been secured pending the final settlement, possibly with a freezing order to make sure they are not transferred or dissipated without approval
Only then is it safe and prudent to propose some form of mediation or other DR. Of course sometimes having issued proceedings unilaterally at the outset, can mean (but not always) that the prospect of out of court settlements becomes more limited. Nevertheless such action is very at the outset in international cases.
Can mediation work if the other spouse or other parent is in a different country?
Yes. There are a variety of ways in which international family law mediators and other DR professionals work with separated international families to help resolve disputes. This can be via a mediator in each country alongside each person, using webcams, and other electronic devices to overcome the cross-border separation.
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