alternative dispute resolution in family law an introduction
Alternative Dispute Resolution in Family Law What if we don’t want to go to court? There is no doubt that a divorce or relationship breakdown is incredibly stressful. Court proceedings can be equally traumatic, and also expensive, and often it is in the best interests of all parties to avoid court if at all possible. In recent years, there has been a push from the courts and the legal industry to provide ways to encourage parties to settle without having to go through the trauma of the court process, and our team is capable and qualified to assist you if you choose either of these paths. Here are some examples of the alternatives to court.
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Solicitor negotiation and round table meetings
Arbitration
The first port of call in a family dispute is usually for the solicitors of the parties to discuss the issues. These primary discussions allow the solicitors to address the main points where the parties disagree, and we can then discuss with you a proposal for settling the case. Usually, both parties make offers and then the negotiation process brings the parties closer together until there is a position which both parties can agree on.
Arbitration has been available under the Family Law Arbitration Scheme since 2012. It is a mix of the benefits of court and mediation, in that it is private and you can be flexible with the structure, but the end result is a binding judgment which is difficult to contest. It may be appropriate for you if you are looking for a swift resolution with a binding judgment, or where confidentiality is of the utmost importance to you. Arbitration can be less costly than court but is occasionally more costly than other alternative dispute resolution methods as you have to pay the fees of the arbitrator who makes the decisions.
This process can take place by telephone, via written correspondence, or in person. A ‘Round Table Meeting’ would take place in our offices or the offices of your spouse’s solicitors and all parties attend, in order to hash out the differences and hopefully come to a settlement in one meeting. Of course this does not always work but it does usually significantly decrease the difference between the parties’ positions.
Mediation The mediation process can be similar to a Round Table Meeting, save that there is an independent third party (“a mediator”) who assists the parties in finding a settlement. The benefits of mediation are that the process is flexible and can be changed according to your needs. The process is confidential and without prejudice meaning that the parties are free to make admissions about their case, with a view to settling, without risk of damaging their prospects in the future. There are numerous formats for mediation, and it is possible to attend mediation while sitting in a separate room to the other party. You are free to choose the format that suits you and your case the best, and we can attend to assist you if you would like.
Arbitration is not available for resolving children disputes or those with an aspect of insolvency.
Collaborative law Collaborative law is another relatively new addition to the Family Law arena. It was developed in the USA and is unique in that it is intended to encourage all parties including their lawyers to settle. Both parties must instruct collaboratively trained lawyers (of which we have a number) and you, your spouse, and your solicitors must sign a document called a participation agreement which commits you all to resolve the dispute without involving court. Sometimes this agreement can include the requirement that if the process is not successful and the matter goes to court, both you and your spouse have to instruct new solicitors. This means that both the parties and the solicitors have a significant incentive to persevere with the collaborative process. You, your spouse and your respective solicitors will hold a series of four-way meetings and your solicitors will use their specific training to encourage settlement and assist negotiations. The format can be anything you choose, and you are able to control the timetable. The only time the court is involved is when it approves and makes the order.
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Family Team Services for individuals include:
Alan Kaufman Consultant: Head of Family T: +44 (0)20 3755 5538 E: alan.kaufman@howardkennedy.com
Jay Patel Partner T: +44 (0)20 3755 5650 E: jay.patel@howardkennedy.com
Lois Langton Partner: Private Client & Family T: +44 (0)20 3755 5559 E: lois.langton@howardkennedy.com
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wills and inheritance tax planning
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efficient administration of estates
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creation and administration of trusts and charities
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trust and estate dispute resolution
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marriage and cohabitation (pre-nups/postnups/cohabitation agreements)
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relationship breakdown (divorce/civil partnerships dissolution and financial settlement)
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our specialist children’s unit dealing with residence and contact, adoption and surrogacy, international child abduction and children disputes
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residential property
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employment law advice
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reputation management and defamation
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personal injury
Juliette Peters Partner T: +44 (0)20 3755 5658 E: juliette.peters@howardkennedy.com
Michele Freyne Partner T: +44 (0)20 3755 5463 E: michele.freyne@howardkennedy.com
No.1 London Bridge London SE1 9BG DX 144370 Southwark 4 Tel: +44 (0)20 3755 6000 Fax: +44 (0)20 3650 7000 www.howardkennedy.com