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Insights // 23 April 2021

Settling a Divorce Without Going to Court - What is Alternative Dispute Resolution (ADR)?

Partner Claire Dyer, in our leading Family Law team, explains the methods of Alternative Dispute Resolution (ADR) that can allow divorcing couples to settle a dispute without the need to attend court.

Most divorcing couples want to try and agree a financial settlement without the need for court intervention. As well as being less costly, this also reduces animosity, which is particularly important if the couple has children.

There are, however, some cases where a court application has to be made, in particular where one party is refusing to engage and/or to provide proper financial disclosure. Sometimes, the mere act of making the application persuades the other party to start to cooperate and engage. The difficulty though is that once a court application has been made, it tends to take on ‘a life of its own’ with everyone focussing on the next court directed action and the next court hearing, distracting them from the main purpose of trying to agree a settlement.

The court does have power to put proceedings on hold to enable parties to consider alternative, non-court based methods of resolving a dispute. It is likely that this power is going to be exercised more frequently given that the courts are overloaded with a backlog of cases and proceedings can easily take 12 to 18 months to resolve. In any event, the parties and their solicitors should have in mind the alternative, non-court based methods of resolution at every stage of the process – in particular before making a court application, but also during the court proceedings – and ask for proceedings to be put on hold where this would be beneficial.

Methods of Alternative Dispute Resolution (ADR) 

There is a wide range of alternative methods of resolution and the table below provides a simple explanation of these and highlights a few of the pros and cons:

Method

Description

Pros

Cons

Face to face mediation

The parties meet face to face with each other along with a trained mediator in a series of meetings where they provide financial information, ensure that all of the factual information is shared and understood, explore their options and seek to reach an agreement.

  • Less expensive.
  • Gives the parties greater control.
  • Can be fairly swift.
  • Not everyone wants to sit in the same room as their former partner.
  • One or both parties might not have the confidence to negotiate without support.

Shuttle mediation

This is similar to face to face mediation, but the parties sit in separate rooms and the mediator ‘shuttles’ between them.

  • Less expensive.
  • Gives the parties greater control.

 

  • Tends to be slower than face to face mediation.
  • Some subtle nuances of communication can be lost.
  • One or both parties might not have the confidence to negotiate without support.

Hybrid mediation

The parties are accompanied in mediation by their solicitors. Generally the mediator will shuttle between the two groups and can only disclose information to the other which has been authorised.

  • Parties are supported by their solicitors.
  • Based on information from each of the parties, the mediator can identify common aims and a route to a settlement.
  • More expensive than other forms of mediation.
  • Likely to be slower due to the greater number of people involved.

Collaborative process

Financial disclosure and negotiations take place in a series of ‘four-way’ meetings between the parties and their solicitors. The parties and solicitors specifically agree that they will ‘collaborate’ or ‘work together’ to achieve a settlement and avoid going to court.

  • Advice is provided to each party in front of the other so that each can hear the possible outcomes.
  • The parties are supported by their solicitors in the discussions.
  • Tends to be more expensive than mediation.
  • Only works if both parties truly want to settle and are prepared to make compromises to that end.

Early Neutral Evaluation

An independent lawyer – typically a family barrister, ideally one who sits as a Judge or arbitrator – is asked to provide a neutral opinion on one or more specific issues which are proving a stumbling block to settlement.

  • Provides an objective opinion on a particularly contentious issue.     
  • Can eliminate an issue making settlement more likely.
  • Cheaper than a face to face private FDR.
  • Doesn’t provide the same opportunity for dialogue as a private FDR.
  • The opinion is not binding.

Private FDR

The parties conduct a Financial Dispute Resolution hearing in front of an independent and privately paid evaluator who hears the relevant arguments and gives an opinion on likely outcome.

  • Can be far quicker and cheaper than the court process to get to this point.
  • The evaluator will be a family law expert and will invest the required time to help the parties settle.
  • Tends to be more expensive than some of the other ADR options.
  • The opinion is not binding.

Arbitration

A fully qualified family arbitrator hears the arguments and decides the outcome, the parties having signed an agreement to be bound by the decision.

  • Much quicker than the court process and usually cheaper.
  • The date and venue for the hearing are agreed at the parties’ convenience.
  • More expensive than other ADR options.
  • It is an adversarial process.

For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.

This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.

Claire Dyer

Claire Dyer

Partner, Family Law

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