Alternatives to Court
At Stephens Scown, we actively support clients in exploring alternatives to court when looking to resolve issues on the breakdown of a relationship, including mediation and collaborative law.
Relationship breakdown and divorce can be emotionally challenging, and the prospect of court proceedings can cause additional anxiety. However, it is important to note that court is not your only option, and it should generally be treated as a last resort. There are a wide range of alternative methods to progress a divorce, a financial settlement, arrangements for children and other family law issues.
These alternatives to court – previously known as Alternative Dispute Resolution (ADR) – are now commonly referred to as Non Court Dispute Resolution (NCDR). There are huge benefits to resolving matters via NCDR, including amongst other things:
- retaining control of the process
- reducing animosity
- saving on cost and
- avoiding delays.
It is imperative that all relevant options are considered at the outset of your matter. Indeed, family law rules require you to utilise alternative-to-court options before making any application to court. Failure to do so could have financial consequences or result in delays.
Our expert family law team are ideally placed to advise you about your options in full and to determine with you how best to proceed.
What are the alternatives to court?
Non Court Dispute Resolution alternatives to court can take a variety of forms, including:
Solicitor Negotiation:
Where parties are unable to resolve matters directly between themselves, the next step is usually for parties’ representatives to try to negotiate an agreement on a voluntary and amicable basis with the other party’s solicitor.
Mediation:
A neutral third-party mediator guides and assists both parties in negotiations with the aim of guiding you to an agreement. Solicitors can advise and support you in the background where you are attending mediation yourselves, assisting with the process, financial disclosure and legal advice.
Solicitor Supported Mediation:
Solicitors can attend mediation with you to support and advise you through the mediation sessions themselves. These mediations can sometimes last a day, with the aim of reaching an agreement swiftly.
Private FDRs:
It is possible to recreate a court Financial Dispute Resolution hearing on a voluntary basis. The parties appoint a family law expert to act as a Judge to preside over a day of negotiations and provide indications about the possible outcome of the case. The parties are not bound by any indication given but the aim is to reach an appropriate compromise.
Family Law Arbitration:
An Arbitrator can be appointed by the parties to determine the outcome of the case in lieu of a judge at the arbitration takes place much like a private court hearing and the parties will be bound by the outcome.
Collaborative Family Law:
Collaborative law sees a client-led approach, where parties sign up to deal with matters by way of a series of roundtable meetings only (and no correspondence) and sign an agreement to say they specifically agree not to go to court.
Resolution Together: One Couple, One Lawyer:
It is possible for a couple separating amicably to be advised by one lawyer in order to identify a fair and amicable financial settlement on a consensual basis. This option is not suitable for everyone, for example, where there has been domestic abuse or coercive control.
How can we help avoid court?
Before considering court proceedings, our experienced family law solicitors will try to resolve finances and children related issues on a voluntary and amicable basis, if appropriate. For this to work, both you and your partner must be prepared to take a reasonable approach and potentially make compromises. We will consider with you what dispute resolution options may be an appropriate next step if negotiations fail, depending on your individual circumstances.
It’s not always possible to reach one, but if an agreement is reached, it is important that it is recorded in an appropriate formal document, such as a consent order.
There are cases where Non Court Dispute Resolution may not be appropriate, for example, where a party is refusing to disclose or is hiding assets, or is unsuccessful. If that is the case for you, we can advise you on the court process and how best to achieve your preferred outcomes.
Collaborative law vs mediation
Collaborative law is another way to try and resolve family disputes without the pressures of potential court proceedings. It involves face-to-face meetings between you and your partner to find agreeable ways forward without litigation. Collaborative law involves you both being represented by your appointed solicitor, as well as jointly taking advice from any appropriate neutral advisers, for example, a financial adviser or accountant.
The benefits of the collaborative approach include:
- no courtroom animosity
- the decision being yours, and not a judge’s
- the agenda being set on the issues most relevant to you
- proceedings are confidential and not ‘aired in public’
- potentially being far less expensive
- a lower emotional impact on you, children if you have any, and the wider family.
If the process is ultimately unsuccessful, it is possible to agree to use arbitration as a way of resolving matters to avoid court.
Mediation is essentially a discussion between you and your partner, with a third person present to guide and assist with that discussion – hopefully towards an agreement on the terms of your separation. It’s not designed to get you back together as a couple – merely to find and agree on a way forward that causes the least stress and expense.
You can attend mediation yourselves and if so, it’s advisable to take advice from a family solicitor in the background throughout the process in relation to the procedure, financial disclosure, settlement parameters and legal advice. We provide clients with a mediation support service so that you can be prepared for mediation and have the best chance of reaching a settlement.
It is also possible to have a solicitor present at the mediation, to support you throughout the entirety of the process. Your solicitor can advise you as the mediation is taking place – or introduce what’s known as ‘shuttle mediation’, where you remain in separate rooms and your appointed mediator goes back and forth between you.
As with collaborative law, it’s important to speak with your solicitor to ensure that any understanding and agreement is made formal, as your discussions and provisional agreements through mediation or collaborative law alone are not legally binding.
Family Law arbitration
Arbitration involves appointing an experienced arbitrator to make decisions about the arrangements for your children and/or to achieve resolution of any disagreements regarding finances. They effectively act as a private Judge.
Both you and your partner need to agree to arbitration, and the decision reached through this process will be final and binding.
It is possible to engage an arbitrator to resolve almost any family law dispute, in relation to financial remedies, private law children matters, and cohabitation and property disputes. The arbitrator can determine an entire claim or alternatively a specific issue or issues. If you agree to arbitrate, you agree not to apply to court whilst the process is ongoing and to be bound by the decision. Once the process has concluded, the parties will apply to the court for an order as set out in the arbitral award.
There are several benefits to arbitration, including that it is more flexible than the court process. The parties retain control of the arbitrator, location and timetable. There is flexibility to simplify the court procedure and matters can be dealt with quickly.
Resolution Together: One Couple One Lawyer
Our divorce advice service for couples follows the SRA-approved Resolution Together model and enables suitable couples to jointly consult one solicitor to advise them on the divorce process and help them gather all relevant financial information, obtain any expert evidence or advice required (for example, to value properties, business interests or advice on pension sharing options) and advise them both on fair settlement options.
Resolution Together is a wholly advice-based service that allows a couple to work with one lawyer to seek expert advice to help them make a consensual decision about the outcome of their separation. This avoids the risk of each spouse consulting separate lawyers and then becoming polarised, each striving for their best-case scenario, resulting in a lengthy, stressful and costly negotiation/court process only to meet in the middle anyway. It also cuts out the significant cost of all communication that would otherwise take place between two lawyers. That cost cannot be underestimated.
Frequently asked questions:
What are the alternatives to court?
There are various different types of non-court dispute resolution options, including solicitor negotiation, mediation, solicitor-supported mediation, private FDRs, collaborative family law, arbitration and Resolution Together. Our family law team can discuss the pros and cons of these and help you decide which options would be best for you.
What is collaborative law?
This is a non-court dispute resolution option which involves both parties agreeing not to go to court, and to resolve matters by way of a series of face-to-face roundtable meetings. The process is client-led, and parties and their advisers work together towards an amicable solution.
What is family law mediation?
A neutral third-party mediator is appointed to assist with negotiating solutions and guide discussions to assist in resolving family law issues. It is important to get advice from a solicitor about the process and settlement options as the mediator cannot provide legal advice.
Can you support me through mediation?
Yes, we offer a mediation support service to help you understand and complete the mediation process. We can advise you about the process at the start, guide you through the process or can even attend sessions with you. Family solicitors can advise you at all stages of the process, including on settlement options. Mediation can take a variety of forms but where solicitors are attending, the most common would be a shuttle-style mediation, where the mediator moves between parties in separate rooms.
What is family law arbitration?
An expert arbitrator can be appointed by the parties to determine an outcome of a case or part thereof (rather than just guiding parties to settlement). The arbitrator acts in lieu of a Judge and the outcome imposed is binding on both parties.
What is Resolution?
Resolution is the national body of family lawyers committed to dealing with family law matters with minimal conflict where possible. Our Family team are members of Resolution and subscribe to the Resolution Code of Conduct.
