Non-Court Dispute Resolution

Since 29.03.2024, the rules that govern the family law court process has changed and there is more focus on encouraging early resolution of child arrangement disputes and reaching a financial settlement on marriage or relationship breakdown. The court can now use the natural gaps between hearings to encourage the separating couple to attend non-court dispute resolution to reach an agreement outside of the court process. If either person refuses to engage or attend, the court can make costs orders against that person.

The meaning of non-court dispute resolution has been expanded to mean “methods of resolving a dispute other than through the court process, including but not limited to mediation, arbitration, evaluation by a neutral third party (such as a private Financial Dispute Resolution process) and collaborative law.” 

It is important to remember that this remains a voluntary process.

Mediation

A trained mediator will first speak to you and your former partner separately. The aim is for you both to discuss and reach an agreement. This can help with a financial settlement or arrangements for your children, as well as any other related matters with the focus on your future rather than your past.

Mediation, like other alternatives to court, is a voluntary and confidential process. This means that any discussions you have cannot be referred to in court. During the process, the mediator will guide you through discussions and explain the steps involved, assisting you in reaching an agreement together.

It is sensible for you to seek legal advice while you are going through mediation. This can help keep your legal costs manageable and achieve a settlement that works best for you and your family. It is important that any agreement reached is formalised in a court order so that it can be enforceable.

Mediation is not suitable if there is a power imbalance between you or if there has been domestic abuse. However, mediation can help where communication is difficult. It can also be effective in resolving disagreements or understanding the other person’s perspective.

Arbitration

Since March 2012, it has been possible for you to instruct an individual called an arbitrator in financial matters and, since July 2016, in children’s disputes, to act as a private judge.

Before the arbitration starts, you will sign an agreement stating that the arbitrator’s decision is final and that you will be bound by the decision. The decision or award will then be drawn up into a court order, which will be enforceable.

Experts can also be brought in to provide advice to you and your legal representatives. These may include pension experts, accountants, financial advisers, and family consultants.

The arbitration process can be tailored to the issues you want the arbitrator to decide. This includes creating a timetable of events and determining what evidence is needed. You can decide whether the case can be resolved using written evidence or if anyone needs to give oral evidence. You can also choose who the arbitrator will be and when the arbitration will take place. This approach avoids being allocated a judge and time that may not be suitable.

Arbitration can be used to resolve all the issues that need to be resolved or just a single issue. It can also be quicker than the court process due to delays in the court system, and the outcome is completely private and confidential.

Collaborative Law

This process involves you and your legal representatives working together to resolve disagreements. The aim is to achieve a fair and reasonable settlement for your wider family. Your legal advisers will work in a non-confrontational manner.

You and your legal advisors will sign an agreement stating that you will not apply to the court to resolve matters. If you cannot reach an agreement, you will need to change solicitors to make an application to the court.

As far as possible, issues are resolved at joint meetings. Experts can also be brought in to provide advice to you and your legal representatives. These may include pension experts, accountants, financial advisers, and family consultants.

When multiple issues exist, collaborative law can simplify resolution. This approach allows all issues to be worked out together.

At Clarke & Son Solicitors, we always advise you on the benefits of reaching an agreement with your former partner, irrespective of the issues involved, rather than making an application to the court as your first port of call. We will discuss this with you, explain, and explore what different processes may be suitable, guiding you on your next steps.

For specialist legal advice, contact us on 01255 320 555 or email mail@clarkeandson.co.uk.