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At DMH Stallard, we are expert at identifying with our clients which of these many alternatives is likely to work best for them, and to support them through the process so that they are better able to maintain relationships, save time and save money by avoiding expensive and stressful court proceedings.
Contents
Mediation
Mediation only works if there is a commitment on both sides to being open and honest, and a willingness on both sides to compromise. If successful, it has the advantage of being something that both parties have bought into and are likely to be committed to. It is also likely to be much, much cheaper than going to court.
Financial mediation
Financial mediation works on the basis that the separating couple meets with one neutral facilitator over a series of sessions, during which they typically exchange disclosure, agree what further information and/or expert advice is required and then move towards an agreement. Ultimately, the agreement is converted into a binding court order, but not until both parties have had the opportunity of taking independent legal advice.
Child arrangements
Mediation also works where the disagreement is about the children. Here, the mediator helps the parents to make their own decisions about what is going to work best for their children, rather than relying on a stranger – a judge or magistrate – to impose a decision on them. The court process can further damage an already fractured relationship, which can be devastating for both parents and children, whereas mediation can help to facilitate better understanding between the parents, leading to more harmonious decision-making and happier children.
As mediation, and our approach to family law, has developed into a more holistic recognition of clients as people rather than problems, the skills of the mediator have likewise developed. They are adept at managing high conflict and complex disputes, and insightful in managing clients who might have communication difficulties and/or be neurodivergent. The process itself has also developed.
Some mediators will say that there is no case which is not capable, in the right hands, of mediation. That is debatable, since there are some cases in which assistance from the court is urgently required, or one of the parties is clearly being dishonest in their approach. It is, however, unarguable that mediation should be the first choice in very many cases and that, where it is appropriate, significant savings in costs and stress can be achieved.
Other forms of non-court dispute resolution
Over the years, other forms of dispute resolution have been conceived and developed, with a greater or lesser degree of success, including:
- Child-inclusive mediation
- Hybrid mediation
- Collaborative practice
- Private FDRs or early neutral evaluations (“ENEs”)
- Arbitration
Child-inclusive mediation
Where the parents can’t agree on the arrangements to be made for their children, mediation has long been better than going to court. It helps to avoid the parents becoming entrenched in their positions; rather, it guides them towards an understanding of each other’s point of view.
Child-inclusive mediation goes further and directly involves the child themselves. The mediator, in these cases, must be appropriately trained and it is not going to be suitable for every child. It will be for the mediator to assess whether it is suitable and it cannot take place without the agreement of both parents.
The mediator will discuss the disagreement in age-appropriate ways, using tools such as the Bear cards to help the child express how they feel. The mediator will only disclose to the parents what the child has authorised them to say. The child is thereby encouraged to feel safe with the mediator and to have the confidence that their wishes and feelings will be properly heard.
The mediator will then feed back to the parents, which can be a powerful moment. Hearing the voice of the child can help the parents to recognise the impact of their disagreement on the child and the precious opportunity they have been given to resolve the dispute for the benefit of that child.
Hybrid mediation
Hybrid mediation involves not only the mediator, who continues to act as a neutral facilitator, but also the parties’ legal representatives. This can be helpful if, for example, one party is a great deal more financially savvy than the other. The other party may feel that, without their legal representative there, they would be at too much of a disadvantage for mediation to work. Having their lawyer present means that mediation has a chance to work and although, inevitably, it will be more expensive than traditional mediation, it is still likely to be significantly cheaper than going to court.
It will take place over a number of sessions, with disclosure, evidence, expert advice and negotiations as required to get to an agreement. Ultimately, and subject to legal advice, the agreement will be converted into a binding court order.
Collaborative practice
Collaborative practice, like mediation, works on the basis that the parties come to the table with open hands and a spirit of compromise. In fact, they are discouraged from adopting any kind of negotiating position, and all legal advice is given openly and in real time.
The meetings take place around a table and can include people other than the parties and their lawyers. For example, a divorce coach might be helpful in finding ways to navigate an apparent impasse or helping the parties to diffuse tension. A pensions expert or other financial adviser might also provide neutral advice and attend meetings in order to facilitate the discussion.
The whole process is underpinned by the parties’ and their lawyers’ commitment to making it work. If it doesn’t work, the lawyers must withdraw, and the parties have to find other people to represent them. The magic lies in the relationships and trust which develop around the table between the four main protagonists. At the end of the process, assuming it’s successful, the parties may find that their relationship is in far better shape than it would be if they had gone to court or tried to deal with matters through traditional solicitors’ letters, where there is too much room for misinterpretation.
Private FDRs/ENEs
An FDR – which stands for financial dispute resolution – is a hearing which takes place at court during an application for financial remedies on divorce. It’s when the judge has the evidence before him and hears the case presented to him by the parties’ lawyers. He will give an indication of how he thinks the case should be resolved. The purpose is to help the parties negotiate their own agreement without then having to go to a final hearing, which can be enormously expensive, very stressful and end up with the parties achieving a result that neither of them wants. These indications can be very helpful. A large proportion of cases settle at or shortly after the FDR.
The delays in the court system are well-documented, and so many people choose to opt out of the public system and into a private FDR.
A private FDR is presided over by a quasi-judge, referred to as an evaluator, who is usually a barrister or retired judge. Unlike a court-based FDR, the evaluator is chosen for their expertise in family law, and the parties agree whom to instruct so that they both have faith in the outcome. The hearing takes place at a location and time chosen by the parties and enough time is set aside so that the evaluator has time to read the papers and to hear the case properly. Astonishingly, in the public system, there is no guarantee that the judge will have any experience of family finance cases. There is certainly no guarantee that the judge will have time to read the papers in advance or to hear the case properly. There is, in fact, no guarantee that there will even be a judge there on the day.
The advantages, therefore, of instructing your own expert judge who has as much time as needed to devote to your case are obvious. The parties must find the evaluator’s fee in addition to their lawyers’ fees, but the savings in terms of time and stress are enormous, and the outcome is one which the parties themselves have bought into. Assuming it’s successful and they avoid the dreaded final hearing, it will also bring about a very significant overall saving.
Separating couples don’t need to go to court before trying a private FDR. If, for example, they have been trying to deal with matters through solicitors, or even in mediation, but have hit a brick wall, they can agree to instruct an evaluator to provide an early neutral evaluation (ENE) to help them get past the impasse. The ENE might deal with the entire case, indicating what the evaluator thinks should happen with the house, pension, maintenance, and everything else, or the parties might ask them simply to deal with one discrete issue – for example, whether a particular asset should be included or ringfenced.
The indication of an evaluator is not binding, so if the parties don’t agree, they will have to carry on arguing elsewhere, and may, in those circumstances, end up at a final court hearing. But, generally speaking, the couple will be wholly invested in reaching agreement, and with the benefit of the evaluator’s expert indication and high quality legal advice on both sides, it’s more than likely they’ll get there.
Arbitration
This really is private justice. The couple agrees that, for whatever reason, the more collaborative approaches are not for them, and they need an impartial third party to impose a decision on them. The arbitrator – usually a barrister or retired judge – is chosen by the parties and paid for by them. There will usually be at least one case management or directions appointment when the arbitrator will determine what exactly is required of each party and what other evidence is required. The case will then be heard, much like a final court-based hearing, but in a venue agreed by the parties on a date which is convenient to everyone.
Like a private FDR or ENE, the judge is expert in their field and has time to properly prepare. They will have time in which to hear the case properly and the quality of their decision-making will be reliable.
Unlike a private FDR, the decision is binding on the parties and will be followed up by a court order.[1]
You might think that, if the process is similar, the couple might as well go to court and save themselves the arbitrator’s fee, but the advantages of efficiency, convenience and expertise will almost always outweigh that fee. It is, however, a voluntary process and so if one party refuses to engage, court may be the only option.
Arbitration is also available for disagreements about children and can be incredibly helpful where the decision is more urgent than the court is likely to be able to handle – such as a deadline for entering a child into a school or permission to move overseas where the acceptance of a job offer is time critical.
At DMH Stallard, we are committed in every case to considering with our clients whether their case is suitable for non-court dispute resolution and, if so, which model best suits their particular circumstances and characteristics. We are dedicated to supporting our clients in finding their way through their separation in the best possible way for them and we will always support them in navigating whichever path they choose.
We believe strongly that relationships are important. Your relationship with your partner may be changing, but it’s still important, particularly if you have children, and if we can help you to maintain a relationship which works for all of you then that’s exactly what we’ll do. You don’t have to worry that we will try to push you into expensive and unnecessary court proceedings – we will always work with you to choose the very best way forward for you.
[1] It is possible to appeal an arbitral determination, but only in very limited circumstances.
