Is Alternative Dispute Resolution the best way forward for separating couples?

Family court statistics show an estimated 58,762 new family cases are waiting to be heard

Alternative Dispute Resolution is the name given to various ways of resolving disputes other than taking your case to Court. This includes mediation, arbitration and the collaborative process. Particularly during the Covid-19 pandemic, which has put a further strain on the family courts, causing additional delays, and last-minute adjournments of cases, it is worth separating couples giving these ADR options serious consideration.

Arbitration

This is a process in which you and your partner/ spouse will agree to your case being referred to a skilled trained arbitrator who will usually be a retired Judge, barrister, or solicitor. The arbitration process replicates the court process, in timetabling the matter, giving directions for disclosure of information and the exchange of statements, and the hearing itself, in which a decision is made by the arbitrator in place of a Judge. The arbitrator’s decision is legally binding on you both. You will generally have a solicitor or barrister represent you at the arbitration hearing and you and your partner/spouse will pay the arbitrator to hear your case.

Collaborative law

This requires you and your partner/spouse to each consult with a collaboratively trained solicitor. You will each sign an agreement, that you will not take your case to court and your collaborative solicitors will have a series of round table meetings, to try and resolve the dispute. Accountants and valuers can be jointly instructed where necessary to value any assets, for the purposes of the dispute. If the collaboration does not result in an agreement, you will need to instruct new solicitors to take the matter to Court

Mediation

You and your partner/ spouse will meet with a trained mediator to discuss your case, in an attempt to work out a solution. The mediator is completely neutral and cannot give you legal advice. Their role is to facilitate an agreement, by explaining the legal framework and how a court may deal with your dispute. If an agreement is reached, a detailed record of the agreed terms is drawn up by the mediator in a document called a Memorandum of Understanding. Your solicitor can then draw up the Memorandum of Understanding into a legally binding Separation Agreement or Minute of Consent Order.

After the success of the Ministry of Justice’s funding scheme in 2021 and the start of 2022, the government have decided to continue the scheme and make a further investment of £5.4 million towards the scheme. The Ministry of Justice is funding mediation for separating couples, up to the sum of £500. Eligibility for this is not means tested, but it is restricted to cases where the dispute includes a need to agree arrangements for a child or children. The mediation can however include other issues in addition to child related issues, such as the distribution of finances and property upon a separation. The Ministry of Justice has confirmed that since its launch in March 2021, 8,400 vouchers have been used and 65% of cases reached a whole or partial agreement. Our Family Partner, Kathryn Coyle is a family mediator and will be happy to assist if you would like to book a mediation session with you and your spouse/ partner.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.