Delays in the court system have been widely reported in the media in the context of criminal proceedings but sadly remain commonplace in the family courts too. Many courts have a significant backlog of cases, exacerbated further by the pandemic and from which they have not generally recovered. The judiciary and court staff are doing their best under trying circumstances.
In financial remedy proceedings, it can often take around four or five months from the date the application is issued to even reach a first appointment. If your case requires a final hearing (which is unusual because most cases settle before then but does happen), it is likely that from beginning to end, separating couples could be waiting over a year for a judge to make a decision. Having to wait for an extended period for a resolution is often impractical and inevitably causes stress and additional expenses. With these widespread delays, what alternative avenues can couples pursue so that progress can be made sooner rather than later?
Mediation involves you and your partner/spouse having discussions with a mediator present. You can use mediation to resolve financial issues on separation or children law matters such as child contact or where a child should live. Mediation is designed to provide a non-confrontational, confidential, and calm space for separating couples to work through any issues. When it works well it can be a fantastic method to resolve disputes and move forward relatively quickly. Mediation can be particularly useful as a tool where children are involved and parents want to find a way to maintain a co-parenting relationship. The mediator is trained to facilitate your discussions so that you can find a resolution but neutral third parties can be brought in such as family therapists and counsellors as well financial professionals to help resolve any impasse. You and your partner can even decide to both bring your lawyers to the mediation sessions so that you can obtain legal advice on the live discussions.
Private FDR / early-neutral evaluation (‘ENE’)
In financial remedy proceedings you may require a more formal and timetabled method of resolving the issues, while also wanting to avoid the stress and expense of court proceedings. A ‘financial dispute resolution appointment’ or FDR is usually the second substantive hearing in any formal court proceedings. At this hearing, the judge will give an indication of how they think the case should be resolved and that is then used by all the parties to inform their negotiations (the indication itself is non-binding and not seen by your judge at a final hearing who approaches the matter with a fresh pair of eyes). However, there can be a long wait for this hearing, which can mean valuations may need to be updated and positions may become further entrenched.
Private FDR hearings duplicate that format but they take place separately from the formal proceedings and on your terms. They bring the advantage of flexibility (on the date, timing, compliance with directions and location) and also allow complete privacy as they are usually held in barristers’ chambers. Although there is the additional expense of paying for your ‘judge’ (the proper term is ‘tribunal’ as they will not be sitting in a judicial capacity), this is vastly outweighed by the time and ultimate expense saved on waiting for a court date.
Arbitration is another form of private dispute resolution, that can offer a flexible and expedited route to resolving the issues arising on separation. It involves the appointment of an ‘arbitrator’ who can make a binding decision upon you (as with judgements from the family courts, arbitral awards can be appealed on the grounds that the decision was wrong, or if there is another compelling reason justifying the appeal). and your partner whether in terms of an overall outcome or where there is an impasse over a discrete issue. Arbitration can allow greater control over virtually the entire process if the parties want, so it can move at a pace that suits everybody. With the right advice, the process can also be simplified too which is a major advantage. Although there is the additional cost of the arbitrator throughout, as with other forms of private dispute resolution, this can be significantly outweighed by the emotional and long-term financial benefit to separating individuals in dealing with everything that much more quickly.
An often-overlooked form of dispute resolution, the collaborative process involves a series of four-way meetings involving collaboratively trained solicitors all working together to reach an agreement. Everyone signs a ‘participation agreement’ at the outset agreeing that in the event they cannot resolve their issues with their method, they will each instruct new solicitors giving added impetus to the success of the process.
As with so many forms of ADR, third parties such as financial advisors and family therapists can be brought into the meetings to assist the discussions.
At the outset, each person will have the opportunity to set out their own aims and objectives in the process (usually by way of what are referred to as ‘anchor statements’ which can be revisited if momentum is stalling to remind everyone why they are here). Your solicitors will work together before and after each meeting, to see how best to drive the agenda forward but this will be agreed during the course of the work done in the four-way meetings. There is no hard and fast rule for how long the collaborative process may take – sometimes only a couple of meetings are required, sometimes it may be four or five.
Solicitor-led negotiation & round-table meetings
Solicitor-led negotiation is often the first port of call for separating parties to test the water and narrow the issues. Progress can be much slower than the other forms of dispute resolution even where solicitors are sensibly picking up the phones to one another but it can represent a clear channel of communication where correspondence sets out clearly each party’s position. This route can still feel attritional because it will still feel for the most part turn-based and there is an associated cost to that but many parties will appreciate the structure and clarity this provides.
Solicitor-led negotiation is often a prelude to a roundtable meeting where the parties meet with their lawyers (usually in the same room with break-out spaces for discussions but the parties can start with shuttle-style negotiations before being brought together as agreement nears) to further narrow the issues and hopefully progress to agreeing the headline terms of a settlement. Mediation (and the involvement of other third-party professionals like family counsellors) can be used alongside solicitor dialogue (or direct communication between the parties who feel they only need a little help finding a solution) to help make breakthroughs too.
Each of the above methods offer an alternative to the traditional court process. They come with varying benefits including speed, privacy, flexibility and control, less stress, and confidentiality to name just a few. If your partner has already issued court proceedings, many of these options are still available alongside the court process. Issuing court proceedings should be a last resort but can be a useful tool to put a timetable in place and launch a separating couple towards all of the available dispute resolution options, creating their own bespoke method of resolving the issues arising upon their separation.
About Suzanna Brown
Suzanna Brown is a solicitor at Burgess Mee Family Law who advises on all aspects of family law, including divorce & separation, complex financial claims (often with an international element), private law children matters, and postnuptial & prenuptial agreements. Suzanna is dual-qualified in English and Scottish law.
Suzanna is an active member of Resolution, the national organisation for family lawyers.