Dispute Resolution

Summary of Processes 

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), 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 final court hearings, 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
• DR processes involve screening, and adjustment for power imbalances in disclosure and negotiation
• The parties’ lawyers can be involved, and DR processes are most effective when parties receive their own specialist advice and
• 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.

Mediation 

• In the mediation process a neutral and trained professional mediator assists the couple to reach their own proposals to resolve any dispute, without giving legal advice. Mediation is suitable in both financial disputes and disputes concerning arrangements for children.  It is usual and recommended that both parties obtain independent legal advice prior to, or during the course of mediation and at the conclusion to prepare the consent order to be lodged with the family court.  Mediators may be lawyer or non-lawyer and all mediators conduct their work according to a code of practice.
• Child inclusive mediation is undertaken by certain mediators who are specially trained to speak to children, with the consent of parents, and may be helpful in some child arrangements disputes.
• Solicitor inclusive mediation is a process whereby certain mediators meet with the parties and their solicitors, either for the whole process, or more usually for specific meetings, for example considering final proposals.
• Hybrid mediation brings together the family and civil mediation models. The mediator can involve not only the parties’ solicitors but other professionals, for example, accountants, valuers or pension experts in financial mediation or independent social workers.
• Shuttle mediation can be undertaken by the mediator in any of the above processes, to spend time individually with each party to explore options in greater details, or where there may be safeguarding issues.
• Directive Mediation is where an experienced lawyer mediator will provide a neutral indication if the parties seek a steer when finding themselves in a position of being unable to agree.

Collaborative

• Collaborative process is where the couple enter into an agreement to settle through collaboratively trained lawyers without issuing any court proceedings. The intention is to focus on the best interests of both parties and children of the family, in a series of joint meetings with lawyers.  If either party does issue proceedings, both have to instruct new solicitors.  The process can be disadvantageous to a party who has to commence court proceedings, for example because the other party does not settle reasonably and is required to instruct a different solicitor. To overcome such concerns some lawyers undertake a collaborative style process, but without the clients entering into a formal collaborative agreement.

Arbitration

• Arbitration is a form of adjudication, as if by a Judge, but outside the court process. Family Arbitrators are specialist family lawyers who are trained and have qualified as an arbitrator.  The arbitration can be conducted on papers, at a form of hearing or hybrid.  The outcome will be upheld by the court, apart from matters in very exceptional circumstances.  The arbitrator is appointed by the couple to make a binding decision on the facts and evidence.  On the basis of the arbitrators award the parties or their solicitors apply to the court for a consent order.
• The advantage of this form of adjudication is that the arbitrator can be chosen by the parties for the required experience or specialisation of the area of the dispute, and it is a more flexible, quicker confidential and cost-effective process than the courts. Parties will invariably be represented by lawyers, who will be involved in preparing the case for arbitration and making representations, usually to instruct solicitors to represent them.
• There is a distinctive form of international family law arbitration, set up by iFLG founder Prof David Hodson OBE KC(Hons) MCIArb. Please contact him via the link on his profile for more information.

Early Neutral Evaluations

• Early neutral evaluation is conducted both in and out of court, without proceedings being issued. In court it is known as a Financial Dispute Resolution hearing, and an indication is given at an early stage in a dispute by a Court Judge, or an experienced lawyer, sitting as a private Judge as to what may be the outcome if the case were to litigate to a final hearing.  The indication is not binding on the parties but provides them with an early and reliable indication of a fair outcome.  There is a high success rate of the process resulting in a settlement.
• Private Financial Dispute Resolution can be undertaken after financial proceedings have been issued, in place of a court FDR, the advantages being an earlier hearing date, convenient to the parties and lawyers, which can be booked, and more time is available to the private Judge to consider the case. Parties are invariably represented by lawyers who are involved in presenting the evidence and saying why a particular outcome is fair and appropriate.

Negotiations through Solicitors

• Solicitor led negotiation, usually after ‘voluntary’ financial disclosure through solicitors, remains the most common process for out of court settlement, and one of the most cost-effective ways of resolving a family dispute. Each party is represented by their own solicitor, who advises them throughout and advises on the merits of settlement options.  At the end the solicitor will prepare the consent order and the formal document setting out the settlement terms.  The process can include or be supplemented by proposals made by the parties after direct discussions between them, having received independent legal advice from their solicitors.
• One of the skills of a specialist family solicitor, is knowing which form of dispute resolution is suitable and best for each client at each stage of the process towards resolution. If you would like more information or to discuss any of these dispute resolution options, please get in touch with us.

Are there any problems with using DR in international cases?

Frequently as several countries, or laws, may be able to deal with the dispute of a couple, it is important to establish certain matters before either considering or commencing any form of DR.  Legal advice from a solicitor must be taken.  David Hodson has identified, in his book ‘The International Family Law Practice’, the following characteristics when it would be inappropriate for mediation to commence:

• Until jurisdiction has been established, i.e. it is known in which country the proceedings will take place.  This may mean issuing proceedings first and only then suggesting a form of Dispute Resolution.
• Until it has been determined which country’s law will be applied.
• The whereabouts and safety of any abducted child has been ascertained.
• The assets have secured pending the final settlement, possibly with a freezing order to make sure they are not transferred or dissipated without approval.

Subject to the above, it may then be safe and prudent to propose some form of mediation or other DR.  However, a difficulty can arise that having issued proceedings unilaterally at the outset, the level of conflict may have increased and the prospects of out of court settlement becomes more remote.

The necessity of Legal Advice

In all situations where a Dispute Resolution process is considered, legal advice from a specialist family solicitor should be taken to consider the process that may be appropriate in each individual case, and usually for advice parallel to, or during the DR process.

Further details and explanation of Mediation, Collaborative and Arbitration can be found on our website through this link: https://iflg.uk.com/blog/alternative-dispute-resolution-mediation