National Family Mediation Week

Last week was National Family Mediation Week, making now an ideal time to review the alternative dispute resolution methods which can be used to assist parties who are separating to reach agreement regarding child or financial arrangements, without the need for court litigation.

Mediation

It is a statutory requirement for parties to attend a MIAM (Mediation Information and Assessment Meeting) if a party is considering issuing a court application to determine child or financial arrangements.

The mediator will discuss the issues between the parties and attempt to facilitate the parties to reach their own agreed joint decisions about future arrangements and, attempt to improve communications between them. The goal of a mediator is to “help couples work together on the practical consequences of divorce with particular emphasis on their joint responsibilities to cooperate as parents in bringing up their children.”

To ensure that mediation works, both parties must approach the process with an open mind and a resolve to compromise where necessary, whilst also bearing in mind that children’s needs will remain the first consideration of the mediator. The mediator is not a legal advisor and is impartial.

Further legal advice may need to be taken on any agreement reached during mediation. It is not a binding process and parties will have to incorporate any agreement reached between them into a consent order which will need to be filed and approved by the Court. However, it can be a very cost-effective way, both financially and emotionally, to reach an agreement and ensure that the future relationship with your ex-partner remains a positive one.

Private FDRs

The backlog in the court system has resulted in an increase in the number of Private Financial Dispute Resolution Hearings (pFDRs) being explored.

These hearings are conducted to try to reach a quicker resolution in relation to finalising financial arrangements than through the usual court process. They are adjudicated by either a senior barrister or former judge. The benefit to parties is they will have a choice in who will adjudicate over their financial dispute resolution hearing and any agreement reached and approved by the judge will be binding (unless a significant intervening event occurs following agreement).

pFDRs also have the advantage of swifter listings and in most cases the judge will be available for the entire day. This increases the chances of agreement being reached as parties have more time to negotiate and, as a result feel less rushed into making important decisions for their family’s future.

Parties will need to bear in mind the costs of a pFDR will need to be funded on a private basis with the costs usually being split equally between them unless one party agrees to fund the hearing. However, when the delay in the court process is taken into account it has been found that this cost is one often worth taking.

Arbitration

In the arbitration process parties appoint an arbitrator who makes decisions relating to property and financial orders and, specific issues that arise in relation to children as a result of separation. Any decision made by the arbitrator will be final and binding upon the parties.

The parties must agree to be bound by any decision of the arbitrator but can agree whether they will use the arbitrator for all or parts of the issues in dispute and, whether meetings will take place in person or whether the communications will be conducted in writing.

The process takes place in a less formal setting than a court room and, is a swifter way to obtain a final decision on matters than obtaining one through the court litigation process. However, arbitration may not be suitable for those parties who feel there may be deliberate attempts by one party to conceal assets or if evidence is required from third parties.

Any decision made by an arbitrator is binding and will be approved by the court as a final order.

Round table meetings

Round table meetings between legal representatives can be an alternative way to negotiate a settlement and avoid potential court litigation.

These meetings work best where there is a general consensus between the parties to reach an amicable settlement but where communications between the parties are more fraught. In those circumstances sensible talks between legal representatives can assist in narrowing issues with the intention to agree matters where possible.

Court should be a last resort as it increases costs and does little to assist future amicable relations between separating couples, which is important where they are still parenting together. Sometimes it is unavoidable but with pressure on the courts increasing, Clarke Willmott continuously explores with parties whether alternative approaches to resolution are appropriate, depending on the issues involved.

Stacey Collins is a trainee legal executive in the family team at Clarke Willmott in Birmingham