Along with many other public services during these worrying times, courts are struggling to deal with cases before them. Weekly guidance is issued by the Court Service), as much for the benefit of the judges as the lawyers trying to assist their clients in bringing their family law cases to a conclusion. There was some evidence that financial remedy proceedings were all being adjourned to enable courts to deal with cases which were considered to have a higher priority as a matter of public policy, for example those involving children or domestic abuse.
The fact remains that delays in dealing with the consequences of a relationship breakdown can take their toll on those involved. This may include the children if, for example, they are emotionally affected by the related stress suffered by their parents or because they are not living in settled accommodation pending a decision being made as to how the equity in a family home should be distributed between the parties.
What alternatives are there to court proceedings?
There are various methods of alternative dispute resolution (ADR). Two methods which are starting to have some traction are arbitration and private FDRs (Financial Dispute Resolution Appointments). Both of these processes can be undertaken without the need for the parties and their family lawyers to be physically present: like with most family law proceedings these days, arrangements for remote hearings are quite well developed and are becoming the norm.
Arbitration can in fact be undertaken to resolve both financial matters arising from a relationship breakdown and issues relating to the arrangements for the children (where the arbitrator is appropriately qualified).
The following can be considered a significant advantage over most kinds of litigation and can assist parties where negotiation or mediation may have broken down:-
- The parties select the decision maker. An arbitrator can be chosen for his or her expertise although the appointment can be left to the Institute.
- Continuity of the arbitrator. The same arbitrator will be involved throughout. This will ensure that the arbitrator has a more detailed knowledge of the case, less wasted costs and a consistency in approach.
- Flexibility. The arbitration can be made to fit the parties’ diaries and circumstances, rather than slotting around (frequently inconvenient) court dates. It can be tailored as appropriate to particular circumstances. For example, it could be dealt with on a “papers-only” basis or with limited oral or statement evidence, or with limited (or full) cross-examination. Where the parties cannot agree the procedure, the arbitrator can make the decision for them.
- Control and pacing. Because parties are able to choose the arbitrator, place and time of the hearing, the process gives those parties a greater feeling of control over their speed and progression. Parties are not stuck with court rules and timings.
- Confidentiality. Many family law proceedings are now open to the public and press. Arbitrations are private. Unless the parties consent otherwise, the only parties that can attend are the parties, their family law solicitors and barristers, experts and witnesses. Indeed the arbitration agreement provides that the parties are to sign up to the principles of confidentiality. It is surprising, therefore that more public figures and celebrities and don’t do this.
- Binding Outcome. Arbitrations have the advantage of being both less formal than court proceedings but more formal than mediation. Like court but unlike mediation, they result in a binding outcome.
- Certainty and promptness of outcome. Parties may want to avoid the feeling of having made too many concessions and would prefer for an arbitrator to make a final decision.
- Evidence. The arbitrator is not necessarily bound by all the rules of evidence but may use non-privileged documentation, whilst attaching to that only such weight as is appropriate.
- Speed. It will almost always be faster than going to court.
- Discrete issues. Very often negotiations or mediation may break down because of a particular sticking point. An arbitrator can be called upon to make a binding decision on that particular point, freeing up the parties to go back to negotiation or mediation as they may prefer.
- Cost. Arbitration is not cheap but is usually regarded as better value for money than litigation because it can be tailored to be quicker, less formal and “more athletic”. On a costs/benefit analysis, arbitration is generally thought preferable to a long court process.
- Can be dealt with on paper. This is particularly relevant during the current pandemic.
- There will always be a result. Unlike other forms of alternative dispute resolution, arbitration always results in a binding award.
If a final court order is required, this is a formality, as the family court will recognise an arbitral award.
Private FDRs/Early neutral evaluations
FDRs (Financial Dispute Resolution Appointments) have been part of the court process for some time now. At this appointment, which usually takes place after there has been full financial disclosure and valuations of any property, pensions or business have been obtained, the judge hears representations on behalf of both parties and gives an indication of how he or she would decide the case if dealing with it at a final hearing. This can be very persuasive in the negotiations which usually take place on the same day and very often results in the parties settling the matter without incurring further cost and delay.
The hearing is “without prejudice” so that if a resolution is not achieved and it is necessary to pursue a more formal resolution process such as arbitration or court, the judge or arbitrator cannot be informed of any concessions which may have been made by either party during the FDR with the aim of trying to achieve a settlement. This encourages the parties to negotiate more freely.
A Private FDR is similar to a court FDR before a judge, inasmuch as the person who conducts the Private FDR (who is usually an experienced family barrister or retired family judge) will give an opinion as to an appropriate settlement with the aim of encouraging the parties to reach agreement.
In either case, if agreement is reached, a draft consent order is prepared and submitted to the court for final approval. It will then have the force of a final court order.
A similar process is available for dealing with issues concerning children and is usually referred to as an Early Neutral Evaluation of these cases. As well as the typical cases involving arrangements for children, this can be used for such matters as temporary or permanent removal from the jurisdiction.
A private FDR or Early Neutral Evaluation has many of the same advantages as arbitration. A particular attraction of both processes for children matters is speed and there is also the possibility of a paper-based decision.
The advantage of a process which involves the parties negotiating a settlement is that they hopefully end up with an outcome with which they are comfortable – although it is not inevitable that a settlement will be agreed.
Although both processes involve paying for a “private judge” unlike the court process, as mentioned above, there is usually a significant saving in legal costs as a result of having the matter resolved relatively quickly.
Use of technology for remote attendance
As a result of the coronavirus pandemic, most legal professionals have become more conversant with using platforms such as Skype and Zoom. Therefore if the parties do not wish to rely on written submissions, both arbitrations and private FDRs can accommodate verbal representations in a similar way to the position if there is a physical attendance.
If you have any questions regarding alternatives to court when a relationship breaks down, or require legal advice, please do not hesitate to contact Deborah Prance, Partner in our Family team on 01252 367 514 or email firstname.lastname@example.org