Resolving a dispute, particularly when it comes to family, is rarely an easy matter. Emotions can get intense, and it can be difficult to know what route to take.
Court hearings allow for an objective judgement to be decided upon by a judge, potentially helping to settle the dispute. However, there is also the option of seeking alternative dispute resolution. This covers all means of resolving a dispute that takes place outside of the courtroom, for example, mediation.
This article will explore the question of when those involved in a dispute should seek alternative dispute resolution rather than turning to legislation. To do this, we will use a recent family dispute hearing as a case study to explore and hopefully answer this question.
While it can be difficult, choosing the right option can lead to your dispute being resolved quicker and in a less costly manner. The advantages of knowing what option to choose are clear, and we hope this article will help you make the best possible choice.
What is Alternative Dispute Resolution?
As we briefly mentioned in the introduction, alternative dispute resolution is essentially any form of dispute resolution that takes place outside of the courtroom. Methods of dispute resolution that fall under this category include:
- Mediation: mediation involves you and your spouse, partner, etc, meeting up with a mediator in order to work through a dispute. Mediators are completely neutral parties and do not tend to give legal advice, though they are able to explain how legal matters are typically dealt with in court. The aim of mediation is to allow you and your partner to create and decide on solutions that work for both of you. The final decision is recorded, and using this, your solicitor will draw up a legally binding separation agreement.
- Collaborative Process: This process involves both parties and their respective legal representatives working to reach a mutual agreement without the need to escalate to court. At the beginning of the process, all parties sign an agreement committing themselves to resolving the case without going to court. All settlement discussions take place at a round table meeting with the disputing parties and representatives present. Each party can consult with individual coaches and advisors throughout the process.
- Arbitration: During arbitration, both parties will submit the details of their dispute to a trained arbitrator or an arbitrator panel. The arbitrator will review the evidence and listen to both sides of the dispute before issuing a fair and objective decision that is legally binding.
When should it be used?
Alternative dispute resolution is a great option to consider before taking your case to court, in most cases.
This is for a variety of reasons. Firstly, alternative dispute resolution methods are, on the whole, much less costly than resolving a dispute in court. They are also generally a faster way of resolving a dispute.
Alternative dispute resolution methods are particularly beneficial in regard to family law due to their non-adversarial nature. Taking a dispute to court might make the dispute feel worse and more stressful for all parties involved because they are working against each other to achieve their own desired outcome. However, most methods of alternative dispute resolution focus on helping all parties involved come up with a solution that works for everybody, together.
This focus on creating an amicable resolution through communication and compromise is ideal for situations involving child law and divorce, as they are cases that often require a high level of sensitivity and cooperation in order to be effectively and peacefully resolved.
However, alternative methods of dispute resolution may not work for everyone. For example, those who have experienced abuse from a partner would likely find it beneficial for their own wellbeing and safety to immediately take their case to court.
The Court Hearing in Question
We will now present a hearing we feel serves as a great example of why alternative dispute resolution methods are important. As this case deals with sensitive family issues and involves a child, the names of all parties involved will be kept private. The specific hearing we will be focusing on is a financial remedy hearing that took place early this year. The hearing was carried out before Mrs. Justice Knowles.
Before the hearing, neither party involved in the dispute had requested or carried out any sort of alternative dispute resolution.
The separating couple had attended a similar hearing last summer, which had failed, leading them back to the courtroom once more to attempt to solve the issue.
While not completely relevant to the financial dispute hearing, the couple also has a child, whom they will be attending another hearing about in March. No form of alternative dispute resolution was carried out in regard to child arrangement plans either.
Knowles mentions that part of the court’s duties is to consider whether non-court dispute resolution is appropriate at every stage in the proceedings. She suggested that in this case, it would be beneficial for both parties involved to seek some form of alternative dispute resolution before their next hearing on the matter, as there was ample time to achieve this.
The reasoning given for this is that the separating couple had already spent a lot of money on court proceedings. For both parties’ sake, Knowles wanted them to consider a less costly option that might prove more effective for them than pushing on with more litigation.
Knowles also mentioned that litigation would likely make the situation more hostile for both parties, which should be avoided, especially as there was a child involved.
Knowles acknowledges that the court does not have the power to force any individuals to seek alternative dispute resolution against their will. However, she was able to discuss with both parties involved why doing so may be beneficial for them and their child in the future and explained that the court has a duty to encourage those in a dispute to seek alternative dispute resolution methods where possible and safe.
Eventually, Knowles and their respective legal teams convinced the couple to try alternative dispute resolution before their next hearing. They agreed to inform the court if they were able to come up with a solution in that time.
What can be Learned from this Case?
This hearing and its outcome show us the importance that alternative dispute resolution has when it comes to family law. Although seeking to resolve disputes amicably and peacefully should be the goal in all areas of law, family law, particularly divorce and child law, can be very emotionally complex.
As a result, those involved in family law disputes would likely benefit more from alternative dispute resolution methods.
It should also be brought to your attention that changes to the Family Procedure Rules (FPR) that have come into effect on April 29th, 2024, may change how cases such as this one will be handled in the future.
Previously, the courts have only focused on mediation as a form of alternative dispute resolution. These changes will expand the court’s definition to include arbitration, collaborative processes, and other forms of private resolution.
Even more dramatic, those going to court must openly share their views on alternative dispute resolution, and couples that have not attempted alternate methods without good reason (such as domestic abuse) may face cost sanctions. Essentially, couples will be asked to make a real effort to attempt to resolve their dispute outside of the courtroom.
Concluding Notes
We hope this article has been a valuable insight into the dispute resolution process with regard to family law. We are aware that this process is not easy, particularly with the April law changes now in effect.
To our readers who are going through this or considering taking this path, our team is here to support you.
If you would like to learn more about the personal dispute resolution services we offer, you can click here. Alternatively, you can see our contact page here if there’s anything you’d like to talk to our team about.