Good Divorce Week (28 November – 2 December) this year will have a strong focus on the current crisis in the family courts and how we can ease the pressure on the courts by looking at alternative ways of resolving family matters.
It will come as no surprise to anyone who has had recent involvement with the family courts that they are overstretched and dealing with a large backlog of cases, resulting in delays and increased costs. It is therefore more important than ever that we look to resolve family disputes outside of the court arena when possible.
This will lead to financial matters and children's arrangements being resolved faster, minimising the opportunity for acrimony to build, and in turn, free the court up to deal with those cases which cannot be agreed.
There are already a wide range of options available to those who want to resolve matters outside the court process including mediation, collaborative law and arbitration.
Mediation is a well-known alternative to court proceedings.
Having a trained, independent professional facilitating discussions has shown to be effective in helping separating couples reach an agreement on a wide range of issues which matter to them.
As mediation is a voluntary process, the pace is determined by the parties and it relies on them being able to communicate openly and honestly so it may not be the right option for everyone (or it might not be the right option at a particular point in time), but this is something that a mediator will be able to explore and, if necessary, signpost alternative routes.
Combining mediation with arbitration can be an effective way of resolving any impasse. If an agreement cannot be reached in mediation, then making an application to the court may be beneficial; mediation can continue, and a settlement can still be reached outside of court, but a timetable will then be in place.
Collaborative law can also offer a number of benefits to clients: the process is voluntary; parties can set their own agendas and timetables and they retain autonomy over the outcome.
Whilst the intention is that the parties work together to resolve the issues between them, they instruct independent legal advisors trained in the collaborative process to act on their behalf throughout.
The foundation for the collaborative process rests on the commitment of everyone involved not to instruct those lawyers if the discussions break down and court proceedings are issued, and this can be a power incentive for the parties to try to reach an agreement.
The involvement of two lawyers can mean that the costs may be higher than other options, such as mediation, but it is about finding the process that is best suited to the circumstances of that couple.
The collaborative route can be very effective where one person may feel less confident about articulating what is important to them or need more support to understand the intricacies of their matter.
Arbitration is another option for separating couples, whereby an arbitrator is appointed to make a decision that will be final, and which can be made into a legally binding order.
The parties are able to dictate the scope and timing of the arbitration, choose the arbitrator and, unlike in the court system, determine the procedure to be followed. It is also entirely private.
Arbitration can be used to determine a discrete issue or the whole range of issues and is available for disputes about both money and children. There are now clearly defined procedures for appealing arbitration awards in the event that one party wishes to challenge a decision, in the same way that the court process allows for this.
One couple, one lawyer
This range of out-of-court dispute resolution options is also set to expand in the coming months with the introduction of a new ‘one couple one lawyer’ model.
Until recently, it has not been possible for two parties to instruct the same lawyer in family matters. This is because it was thought to give rise to a conflict of interest when the parties’ interests are seemingly opposed.
Resolution, the leading association of family lawyers, have, however, recently introduced a new model of working that enables separating couples to instruct and obtain legal advice from one single lawyer.
The premise is that a separating couple can appoint one lawyer to advise them jointly and that lawyer will provide advice and facilitate discussion to help couples reach an agreement outside of the court process.
The key difference between this model and mediation is that a mediator cannot give legal advice to the parties, who are instead encouraged to seek such advice outside of the mediation process.
The ‘one couple one lawyer’ model will not be suitable for all separating couples but will be of huge benefit to those who want to manage their separation together and whose joint aim is to reach an outcome which meets their needs and the needs of any children.
The introduction of no-fault divorce in April 2022 was a significant step in helping couples minimise the potential for acrimony and blame.
The one lawyer approach is building on this and likely to become increasingly popular with many couples who have been able to remain amicable whilst separating.
As awareness of the alternatives to litigation increases, families will continue to benefit from more amicable and cost-effective approaches.
Resolution’s Good Divorce Week provides an opportunity to celebrate the innovation that there has been in recent years towards creating a wide range of viable alternatives to contested court proceedings, while acknowledging that there is much more to be done to improve the experience of separating families.
How we can help
Our specialist divorce and family lawyers can advise you on all aspects of relationship breakdown. All of our family solicitors are members of Resolution and are committed to taking a non-confrontational approach.
For more information, or if you would like to discuss any of the topics included in this article, please contact a member of the team (Holborn: 020 3826 7526, Kingston: 020 3826 7527, Putney: 020 3826 7520). Alternatively, please complete our online enquiry form.