Alternatives to the court system for family clients
A court system that was already creaking at the seams under the strain of demand has only worsened since Covid 19 struck and recent funding cuts to the Court budget were implemented. Sadly, even children matters, which need to be resolved in a timely fashion, are having to wait due to the lack of court time available and the lack of court staff to process the paperwork.
Those involved in children matters and financial matters upon separation/divorce are becoming frustrated by the delays in resolution of their disputes which can run to several years. There are, however, a number of alternatives available which we, at Whitehead Monckton, always encourage our clients to focus on first before considering an application to Court.
Firstly, mediation which can be a useful resource for couples that are able to reach an agreement with the assistance of an independent third party in the form of a trained mediator. Meetings can be jointly attended or shuttle mediation, where the parties sit in separate rooms and the mediator goes between them, can also be an option. Prior to mediation taking place, the mediator will meet both parties to assess whether they are suitable for the process, which is an important part of the screening for suitability for mediation. This assessment is also necessary should the parties need to apply to the court.
Another alternative clients are turning to more is arbitration in which a trained arbitrator, who is usually a retired judge or a senior barrister, will hear submissions from the parties or their representatives and will make a binding decision on the issues. This can be more costly but provides a speedy resolution outside of the court process. The parties can choose to dispense with some of the earlier hearings in the traditional Court process, can ask an arbitrator to decide specific issues, or even ask the arbitrator to deal with their case by paper submissions.
Many senior solicitors and barristers are also offering private FDR hearings which enable parties to have a taste of the court process with an adjudicator acting as a private judge to hear their positions and to offer an indication of what decision a Court might make. Private FDR recommendations are not binding upon the parties but can be influential in helping focus on settlement in order to avoid Court.
There is also the collaborative law approach where collaboratively qualified solicitors help to resolve family law issues arising from separation. This process involves round table meetings with both parties and their solicitors present, working towards a resolution between them.
If you would like more information about any of these processes please contact our family team. We have qualified mediators and collaborative solicitors in our team and have access to an array of excellent arbitrators.