Alternatives to Family Court

By Karen Jeary, Partner at Mayo Wynne Baxter.

We understand that the decision to end a marriage is one of the hardest a couple will face and it is not made easier by the prospect of having to ‘go to battle’ with one another in the Family Court.

The President of the Family Division, Andrew McFarlane, has recently said that “to end up ‘fighting’ a case in the Family Court is a sign of failure and… often a cause for true loss in terms of emotional and mental well-being”.

To issue court proceedings is never an option we advise our clients to take lightly and should truly be seen as the last resort. We recognise the impact that court proceedings can have both personally and on the family as a whole, so will always discuss the various options available to resolve matters and find the best approach.

This may involve the following options to avoid the need for going to court:

‘Kitchen Table’ agreements

These are agreements reached by couples discussing their financial positions and arrangements for the children without the need for solicitor involvement. Many couples can reach an arrangement this way but it is always advisable to seek some legal advice to make sure the terms reached are fair on both parties and of course to record any agreement.

Mediation

Mediation is a voluntary process in which a separating couple meets with an unbiased and neutral third-party family mediator who guides the parties through their discussions to help them towards reaching an amicable agreement. Mediation can be used to reach a financial settlement and also assist in reaching an agreement in respect of care arrangements for the children.

Mediators are not able to give legal advice but can help couples to reach an agreement. The parties retain control of the decision as to whether or not they settle and on what terms.

Mediators do charge for their services, and the cost is usually met equally, despite there being a cost to the process it is ultimately a more cost-effective alternative to court.

Agreements reached in mediation are not legally binding unless and until they are approved by the Court. It is always recommended to get legal advice on the terms agreed, what steps are required to record the agreement and implement the terms.

Hybrid mediation

This follows the same format as standard mediation but allows the parties’ solicitors (if they have them) to be involved in the discussions.

This is particularly useful when there are complex matters involved, as experts can be included to assist in the process by using their considerable skills and knowledge to work towards achieving a suitable settlement.

Collaborative law

Collaborative law is a process in which the parties each have a lawyer specially trained in collaborative law, and all have a shared commitment to avoid litigation. It typically involves informal discussions and joint meetings for the purposes of settling all issues.

Everyone involved in the process signs an agreement at the outset not to go to court and the mutual aim will be to reach a fair and equitable settlement.

The benefits of this approach are that a more flexible and creative solution adapted to both parties’ needs can be achieved, rather than the more rigid approach adopted by the Family Court. Additionally, the parties will benefit from the strength of two lawyers working together rather than in opposition.

The ultimate goal of the collaborative approach is to enhance communications between the couple and set the foundations for a healthy relationship after separation. Collaborative law works best when there is a commitment to be respectful and honest, with a drive and determination to resolve the most important issues.

Private Financial Dispute Resolution (FDR)

This is used solely as a means to resolve financial disputes between parties and involves the private instruction of a senior solicitor/barrister, or retired judge, to conduct a hearing. Both parties have the opportunity to put their case forward before the judge gives their opinion as to what the likely outcome would be if the matter was heard in court.

The instruction of the private judge is a joint one and so the parties typically share his or her fees equally. It can be a costly exercise but is ultimately a very effective way of achieving the best possible outcome for clients whilst avoiding the stress of lengthy court proceedings.

Arbitration

Both parties will jointly appoint an arbitrator to deal with all stages of the case in what is essentially privately funded litigation. Both parties agree at the outset to be bound by the arbitrator’s decision but the process itself gives much more flexibility to those involved – the parties and their solicitors can choose the date and place for the ‘hearing’ rather than be reliant on the court listings and are in control of whether to appoint the arbitrator for the duration of the process.

For this reason, arbitration is a very useful option to couples who would prefer to avoid the stress of court proceedings, especially in respect of resolving financial matters.

If you need any assistance with a Family Law matter, please do not hesitate to contact our experienced Family Team at Mayo Wynne Baxter on 0800
84 94 101. We have team members who are qualified mediators and collaborative lawyers who can advise you as to the best possible ways to resolve matters.

kjeary@mayowynnebaxter.co.uk

www.mayowynnebaxter.co.uk