Let's talk it out

Family dispute resolution week has been in full swing since Monday. A number of events have been taking place around the country run by the umbrella organisation for family lawyers, Resolution. The campaign is aimed at raising awareness of the alternative ways that family disputes can be resolved, other than through contentious and costly litigation in the courts.

In April 2011, a government initiative was introduced requiring anybody wanting to pursue court proceedings in a family case to attend a Mediation Information and Assessment Meeting (MIAM) with a mediator, to find out about non-court options. Initially, the numbers of disputes resolved through mediation increased, however statistics compiled last year showed that, since cuts to public funding were introduced in 2013, the numbers of couples attending out of court sessions have plummeted by 47 per cent. Apparently, separating couples with no access to legal aid go straight to court as litigants in person, which is adding to the already over-burdened court system.

The government has responded in a number of ways. First, earlier this year in April, it was made compulsory for separating couples to attend a MIAM before an application for court proceedings can be issued. Second, the availability of legal aid for mediation was publicised far more by the government- a large pot of money set aside for mediation went unspent last year. And third, in August, the government announced the extension of funding for a single free mediation session where just one of the parties qualifies for legal aid. The hope is that the number of couples attending mediation and other non-court dispute resolution options will rise again, and this week's campaign aims to have a huge impact on raising awareness.

What are the options?

Mediation

Mediation is a process which offers couples an opportunity to talk things through and come to an agreement themselves, aided by the neutral input of a mediator. The mediator will provide impartial guidance and, with some considerable skill and deft handling of discussions, empowers the parties to move towards common ground.

Mediation provides a forum where all issues can be discussed holistically, acknowledging that major points of dispute do not arise in isolation and issues relating to children can be pivotal. A negotiated agreement that both parties can live with has huge benefits for ongoing relationships, which often involve children. It can also produce a quick resolution and it is also considered to be cheaper than the legal process. Even when mediation doesn't work in resolving all issues, the common ground approach means that points of dispute are frequently narrowed down so that any court proceedings focus on outstanding issues.

Collaborative law

Collaborative law differs from mediation because parties appoint their own, independent legal advisers to participate in four-way negotiations, and provide guidance and advice individually to them. The legal advisers and the couple sign an agreement at the start of the process, thereby committing to resolve issues without resorting to court proceedings. In fact, the agreement precludes the legal adviser from continuing to be involved if either party decides to litigate. Similarly to mediation, issues can be discussed holistically and a bespoke solution can be reached which addresses the unique circumstances of the couple. Again, the negotiations conclude with a consensual resolution and lawyers on both sides jointly draw up terms, which can be approved swiftly by the court and made into an order.

Arbitration

Arbitration is a quasi-judicial process, where a qualified arbitrator adjudicates over issues that the parties cannot agree on. The arbitral award is binding and the arbitrator will produce a reasoned decision supporting the outcome, after considering all the evidence and potentially hearing from the parties themselves, in evidence and cross examination.

For the time being, the scope of family arbitration is limited to financial and property issues, but there are discussions about widening the scope to include disputes relating to children. It is a good forum for the overall resolution of all financial issues, but it can also be useful for the speedy resolution of discrete issues while avoiding court.

Arbitration has many characteristics to commend it. The process is entirely bespoke and although the rules lay down a default procedure, parties can decide a timetable that is tailored to their requirements. The parties can also choose the individual with the right skill-set to adjudicate their case, from a pool of 220 trained IFLA arbitrators, (many of whom are eminent retired judges) and high ranking barristers and experienced solicitors. Arbitration has also been commended as a procedure which can secure privacy and confidentiality. As a result, it is becoming more and more popular and, as of today, 38 cases have been arbitrated in the IFLA Scheme.

Any others?

In addition to the dispute resolution models set out above, couples can also choose solicitor led negotiation and of course, it may be possible to negotiate the outline terms of an agreement themselves. However, for some couples, court litigation really is the only option.

The landscape in 2014/5

It is worth noting at this point in 2014, during the third annual family dispute resolution week, that there has been a broadening of the dispute resolution horizon in the last few years, and a movement expanding from the historic mediation centric option. There are now strong and diverse alternatives to court litigation and the resolution survey published at the start of this week has highlighted the huge impact of divorce on children. Separating couples can now investigate the real options available to them in the knowledge that there are cogent choices to be made and real benefits to choosing a non-court route to resolving their dispute.

Suzanne Kingston is a partner Withers