Alternatives to Court

Thinking only in terms of court proceedings to resolve family disputes may not always be in a client’s best interests.

There are, in fact, alternative dispute resolutions to court when it comes to resolving family disputes. These can vary from mediation and arbitration to solicitor negotiation. They all they play a crucial role in terms of keeping families outside of the court system. 

When resolving issues following the breakdown of a relationship it’s essential to consider each client’s individual situation. Then we can identify the best possible resolution process available. 

If you are experiencing a relationship breakdown you need to understand all the dispute arrangements at your disposal before deciding to embark on court proceedings. 

Why consider alternatives to court?

According to The Family Procedure Rules courts are obliged to consider alternative dispute resolution options at every step of the proceedings. Solicitors are also required to do so. 

Covid-19 in particular has resulted in a backlog of cases that has led to lengthy delays in the court system. This has led to increasingly negative impacts on families. By seeking alternative resolutions it is hoped that the pressure on an already overwhelmed family court system will be reduced. 

It’s also more beneficial for families to stay away from the courts. Where a divorce or separation is inevitable the less confrontational the process the better for all involved in order to ensure a smoother transition and better outcomes, especially if children are involved. In general couples do not have to go to court, and it’s far preferable to make the divorce or separation process easier by not doing so. 

What are the options for avoiding the courts?

Mediation 

This is a voluntary process, whereby an impartial family mediator helps couples come to decisions and reach agreements without involving the court. It is an alternative form of dispute resolution which gives the two parties control of the outcomes. They are able to find solutions for moving on with their lives by themselves. 

The mediator does not help the couple make decisions but encourages them to decide what would work best for them so they can reach their own arrangements amicably. The process is confidential, and couples are encouraged to speak freely without their discussions being related to later in court or in open correspondence. 

The aim of mediation is to resolve issues s in a calm and respectful manner, to the benefit of all family members. Mediation can involve children (termed Child Inclusive Mediation) if the children are of a suitable age so that they can have their own wishes heard. 

Mediation has many advantages, compared to the courts. Firstly it is faster and cheaper. It is also less stressful. Discussions can be tailored to individual needs and they are not constrained by the courts, but are focused on what matters most to each individual family. 

Mediation can help parties arrive at independently led decisions and this increases the likelihood that they will stick to their decisions over the long term. It can help to put future relationships on a good footing, something that’s especially important where children are involved. 

It’s important to note however that in certain cases mediation is not likely to be the best option. For example where there are allegations of domestic abuse or harm to children. 

Collaborative law

This involves each party appointing a collaboratively trained solicitor to act on their behalf. Rather than solicitors conducting the case using litigation or correspondence couples and their solicitors have a series of four-person meetings to attempt to resolve disputes. 

Collaborative law is voluntary. Both parties must commit to make it successful. They must both enter agree that if the process is unsuccessful their solicitors will no longer act for them and that this will mean that court proceedings will then need to commence. 

Collaborative law has many benefits, just as mediation does. It is voluntary and allows individuals to dictate how discussions proceed. It has the additional benefit that each client has their own ally or support when the discussions are taking place which could be useful if there are any perceived disparities or imbalances of power i.e. if one party is more vulnerable than the other.

There is an element of cost as regards collaborative law and it can be a relatively expensive form of dispute resolution. It is generally only applicable if significant assets are involved. 

Solicitor negotiation 

This is often overlooked as a form of alternative to divorce; however it also provides a way to avoid court proceedings. 

Solicitor negotiation required both parties to appoint a solicitor to represent them and engage in negotiations with each side. This could be directly at physical meetings or via solicitors correspondence. 

In similarity to collaborative law lawyers lead the process and are there to guide, support and advice their clients. The disadvantage of solicitor negotiation is that it can be quite expensive, and the use of solicitors can create barriers between the parties and lead to a lack of communication between them. This can be problematic if children are involved, and a co-parenting relationship is needed into the future. 

Family arbitration

This is a formal set of proceedings where an impartial, third party decides the outcome of a dispute between two parties. The arbitrator hears the evidence and hands down a binding decision. Both parties need to agree to use arbitration and cannot withdraw from proceedings without the others permission. 

Arbitration differs from the methods discussed above being more formal and it is similar to the court process. However it offers a formal process of reaching decisions without the usual delays of the court system. This can lead to arbitration proceeding in a faster route. 

The chief disadvantage of family arbitration is the cost involved. Parties need to pay solicitors, arbitrators as well as pay for the venue, barristers and process at hearings, making this a way forward mainly for wealthier clients. 

Aramas International Lawyers are happy to discuss all alternative methods of dispute resolution. We are committed to resolving your legal family issues in as constructive a way as possible without undue delay or unnecessary costs.