What is Alternative Dispute Resolution (ADR) ?
Alternative Dispute Resolution (ADR) is almost like a ‘Private’ Divorce, you get to choose the timescale, the method and even the ‘judge’! Because you have control over the process, in some cases you may be able to have your resolution finalised within 6 to 8 weeks. The shorter timescale also makes the process less stressful and much more cost effective.
Family Alternative Dispute Resolution (ADR) is a great method of negotiating and settling disputes involving finances and or children as a result of the breakdown of a marriage or civil partnership, without having to be reliant on the court system. In fact, you must now demonstrate to the court that you have explored ADR prior to asking the court to settle your dispute.
What are the advantages of ADR?
There are many advantages to the ADR process, such as:-
As the process is not reliant on court timetables and availability, ADR can be much quicker, in fact some methods of ADR can result in settlement being agreed in as little as 6-8 Weeks.
2 Choice of ‘Judge’
Divorcing parties can actually choose who will oversee their negotiations and settlement, ensuring that they are relevant for the key issues in your dispute.
By reducing the time spent in resolving the dispute, this can significantly reduce the amount of legal fees spent on inter party correspondence.
The court process can inflict unnecessary stress and emotional harm on separating couples and their children. It can also turn a fairly amicable situation into a more contentious legal battle.
All ADR processes are strictly private and confidential, no one outside of the process has access to the outcome of the settlement award.
As the process is driven by the separating couple, the process can be paused or sped up at anytime if their circumstance change. It also allows for parties to have their issues heard outside of normal court hours, ideal for international clients or those work irregular hours.
What type of ADR is best for me?
There are several options within Alternative Dispute Resolutuion, each with their advantages, depending on the issues surrounding the dispute. Here is a brief summary of each of the options :-
The parties appoint an impartial mediator to help them settle their dispute in a peaceful and cost effective manner.
A mediator does not make a decision on settlement or award but instead assists the parties in negotiating an outcome that is acceptable to both parties.
This is a method whereby the parties agree to employ a senior lawyer, or appropriate expert to consider the strengths and weaknesses of the parties’ evidence and arguments and to provide the parties with a decision, or opinion, on a particular question, or issue, in order to assist the parties in reaching an agreement or determine the potential outcome of the case.
The parties to the Early Neutral Evaluation need to agree to submit to it and be bound by its decision in order for the evaluator to have jurisdiction to determine the issues. In absence of this the decision of the Evaluation cannot be legally binding.
In order for the decision to be enforceable, the contents of the decision needs to be drafted into a consent order, the parties having already agreed to be bound by the decision of the evaluator.
Once the court has approved and made the consent order, it can be enforced as any other court order.
The purpose and desired outcome of a Private FDR is not dissimilar from a court listed FDR, save that the parties select and appoint an impartial senior lawyer to act as a Private FDR ‘Judge’.
The appointed person is generally a barrister, retired judge or a current judge with the relevant expertise pertaining to the complexities of the case issues.
The Private FDR ‘Judge’ will give an opinion on what the likely outcome would be if the parties fail to negotiate and were to proceed to either a court appointed Final Hearing or, in the context of Alternative Dispute Resolution, an Arbitration.
They have proved very effective in achieving settlement fairly early on in proceedings, therefore saving the significant costs that come with progressing to a Final Hearing or Arbitration.
If after receiving the opinion from the Private FDR ‘Judge’, the parties successfully negotiate and agree on settlement, a consent order will be drafted and submitted to the court.
Once approved and made the consent order can be enforced as with any other court order.
In this option, the parties enter into an agreement under which they appoint a suitably qualified person to act as an arbitrator to adjudicate a dispute and make an award.
It is similar to court proceedings in that an arbitrator will produce a decision after hearing the evidence and each party’s case.
In financial cases the decision is called an award and in children cases it is called a determination.
Family arbitration is distinct from all other methods of Alternative Dispute Resolution in that a decision on the award or determination of the dispute between the parties may be imposed by the family arbitrator. It is therefore legally binding upon the parties in the dispute.
Once the arbitrator has made a decision the award or determination it will then be converted into an order and submitted to the court.
Once approved and made, the consent order can be enforced as with any other court order.
A relatively new option but one that is proving to be extremely successful in achieving a fair outcome in a very short timescale.
The parties instruct one impartial family law barrister, an expert who is in court frequently and knows what a judge is likely to do in circumstances similar to those being faced by the instructing parties.
The process is fixed fee and lasts 6-8 weeks. It is suitable for couples who need advice either on division of their finances or arrangements for their children.
The service comprises three main components:-
The first is a free-of-charge telephone or video-link Introductory Session with each party individually. This serves to ensure that the dispute is suitable for the process and allows the parties to ask any questions they may have. Following those short meetings the couple is sent a fixed fee quote for the service.
After the Introductory Sessions follows disclosure, where parties will be advised of the issues in the case and the information required to proceed to the Advice Session. During the disclosure outside expert assistance may be required on issues such as pensions, tax etc. Where such assistance is required, FOMAS will provide a list of vetted and qualified professionals for each issue.
The final stage is the Advice Session, this is a 2-3 hours meeting, either in person or by video-link, with both parties and the barrister at a date and time to suit. Both parties will, together, be given specialist legal advice on what specific outcomes a court would consider to be fair in their particular situation. This is followed by a detailed written advice, so everyone is clear about the advice given and can proceed to a focused negotiation. If settlement is reached, The Divorce Surgery can also draft a consent order, again for a fixed fee.
Is my situation suitable for Alternative Dispute Resolution?
Almost all disputes in family law can be resolved through ADR, to find out which option would be most suitable in your situation.
Please answer a few short questions below…
You will still need to take legal advice in relation to your matter, however dependent on your results we can provide a list of lawyers that can give you tailored legal advice on using ADR in your dispute, this initial service is provided free by most of our associated providers.