Introduction to Non-Court Dispute Resolution

For some time now the judiciary, particularly those dealing with family cases, have been keen to encourage parties to undertake forms of dispute resolution to resolve their family disputes outside of the court arena. There are many reasons for this not least the ability to maintain better relationships going forward, which is advantageous when still co-parenting after relationship breakdown.

In the last year we have all had to deal with the challenges of Corona virus and its impact. Court proceedings have in some cases been halted and many hearings have been heard remotely, often after long delays to find a convenient date and time. However, there remains a huge backlog of cases which in itself is an encouragement to ‘opt out’ of the court system and try resolving disputes in other ways.

It is often quicker, particularly in the current climate, and, as a consequence, cheaper, to avoid protracted, expensive and emotionally draining court proceedings in favour of an agreed or facilitated outcome. At New Court Chambers, we offer a number of options, from our experienced practitioners for achieving a satisfactory outcome to private family disputes.

 


Methods of Non-Court Dispute Resolution

  • Negotiation
  • Mediation – Family Model
  • Mediation – Commercial Style*
  • Collaboration
  • Early Neutral Evaluation
  • Private FDRs
  • Arbitration and Family Arbitration (IFLA Scheme)

*Is suitable in some Family Matters

Negotiation

Negotiation can take many forms.  It can occur between the parties themselves if they are still able to communicate effectively.   Sometimes family members or community elders try to assist them.  Where lawyers have already been instructed, very often it is the parties’ respective legal representatives who will conduct the negotiations.

Negotiations can take many forms, via correspondence, at the telephone or face to face.  Often,  parties already deeply embroiled in litigation manage to engage in negotiations at the doors of the court and settle their dispute.

Negotiation is simply a conversation between parties in order for each of them to understand the ‘interests’ of the other and to consider how their respective interests could be satisfied recognising that each one has to give a little and that in negotiation, neither party achieves exactly what they want and that they each need to compromise.

Negotiation has the following advantages: –

  • Savings in costs as disputes may be resolved more quickly and efficiently.
  • Less stress and emotional pressure for the Clients
  • Certainty of outcome rather than the ‘gamble’ of a court hearing
  • Flexibility – the ability to provide by way of indemnity and/or undertakings for matters which the court may not have the jurisdiction to order
  • All encompassing
  • Reduced acrimony between the parties
  • Comprehensiveness – time to ensure that all issues are dealt with fully.

Family Mediation

Mediation is a process whereby clients work together to arrive at their own solutions or settlement proposals in relation to children or financial issues via negotiation and discussions facilitated by an impartial mediator.  The mediator assists the clients in identifying the issues they need to resolve and finding the most sensible and practical solutions for the family.  Mediation itself can take different forms. Below are details about the Resolution Model.

The ‘Resolution’ Model is so-called because it is approved by Resolution, an organisation previously known as the Solicitors’ Family Law Association. This model  involves clients in a number of short mediation sessions (1½-2 hours) over a period of time in which they meet together with the mediator.  In financial matters, one of the mediator’s tasks is to provide appropriate documentation (Forms E) to assist the clients in providing full and frank financial disclosure.  The mediator may also flag up where further financial disclosure or expert reports may assist in the decision-making process.  Mediators often recommend when a client may benefit from legal advice within the process, as the mediator’s task is not to advise on legal matters but to gather information from the clients and to give information where appropriate in order to assist them in reaching their solutions.   Where children are involved the mediator can assist parents in focusing on their children’s needs and to create a tailor-made joint parenting plan.

At the end of the process the mediator provides the clients with a Memorandum of Understanding, which contains their acceptable proposals for settlement which are then taken to the clients’ respective legal advisors for the legal formalities to be completed and their ‘accord’ converted into a binding and enforceable order..  Clients are also provided with an Open Financial Statement of their financial affairs as disclosed within the mediation process.

Mediation has the following advantages-

  • Reduces tension and hostility
  • Solutions are tailor made by the clients to their needs
  • Decisions are made on an informed basis
  • Clients are able to communicate and co-operate
  • Clients are able to explore and examine options in a safe environment
  • Clients are able to appreciate and consider the needs of their children
  • Savings in costs as disputes may be resolved more quickly and efficiently

Commercial Mediation

A commercial style mediation is not just suitable for commercial cases but lends itself to some family disputes where parties require a solution in one day rather than a series of shorter meetings over a longer time period, as is the case with the ‘Resolution’ model (see under Family Mediation).  It is particularly well suited to cohabitation claims under the Trusts of Land and Appointment of Trustees Act 1996 disputes as these can be very expensive, risk laden and the outcome is often unpredictable. Mediation is a flexible process whereby the parties in dispute work together to arrive at their own solutions, with the assistance of an impartial third party, the mediator. The mediator facilitates the parties in identifying the issues they wish to resolve and in reaching an outcome which is agreeable to those involved.  Solutions are not imposed upon parties; they are assisted to reach their own satisfactory outcome.

Commercial mediations usually take place when a case is trial ready.’  In other words parties have likely completed statements of case, possibly witness statements and disclosure has been exchanged but there are advantages to the parties to have an out of court settlement.   In the commercial style of mediation, parties attend with their respective legal representatives who advocate on their behalf in the plenary sessions and advise in private in caucus.  By having the lawyers present, when an accord has been reached, the lawyers together with the mediator can draw up a consent order or agreement which the parties can sign at the conclusion of the mediation and which is then legally binding upon them.

Commercial Mediation has the following advantages:

  • It can take place at any stage once a dispute has arisen, from straight after a response to the letter before claim as well as after the commencement of proceedings
  • Confidentiality can be preserved
  • Solutions are tailor made to the needs of the parties
  • Decisions are made on an informed basis because lawyers are present to advise
  • Parties are able to explore and examine different options for resolving the dispute
  • Costs are reduced as disputes may be resolved more quickly and efficiently
  • Comprehensiveness – time to ensure that all issues are dealt with fully

Collaboration

This is an innovative method of dispute resolution in which both parties and their respective lawyers, trained collaborative lawyers, all work together for the purpose of achieving a fair settlement outcome without going to court.  Indeed, the clients and their lawyers sign a Participation Agreement setting out the clients’ and lawyers’ respective obligations to each other and the collaborative process.  The incentive is that in the event the process breaks down, the lawyers are disqualified from representing their collaborative clients in court proceedings.   In this way, everyone invests in making the process work.

Issues are put on an agenda, discussed and eventually resolved during face to face meetings between all four signatories to the participation agreement.  Outside of those four-way meetings, each client will have a two way meeting with their own lawyer and the lawyers will also engage in two way meetings between themselves to consider how best to progress a case.

Other professionals can be involved although not necessarily in attendance at meetings.  Sometimes expert help is needed, for example with respect to the treatment of pensions or if a client or their child is having difficulty coming to terms with the family issues, a therapist or counsellor may be brought in to assist.  Eventually, when a settlement has been reached both lawyers can draft the formal legal document together and submit it to court for approval, without either client having to attend court.

Collaboration has the following advantages-

  • Everyone enters the process in good faith so it is quicker and less acrimonious
  • If things become difficult the Clients can be reminded of their obligations as stated in the Participation Agreement
  • Clients set their own agenda
  • Clients move along the process at their own pace
  • There is full and frank disclosure so decisions are reached from a position of knowledge
  • Collaborative process helps to keep the channels of communication open

Early Neutral Evaluation

Early Neutral Evaluation (ENE) is a private and non-binding technique whereby a third party, in some cases a retired judge or other senior, experienced and legally qualified person, provides an opinion on the likely outcome at trial.  With its speed, non-binding nature and use as a springboard to settlement, ENE either on its own or following an impasse in negotiation or family mediation is becoming a popular tool.

ENE evaluates chances of success in the legal process, forces Clients to consider their BATNA and WATNA (best/worst alternative to a negotiated agreement) and encourages resolution away from the straitjacket of the formal legal arena.

Litigation is not only expensive financially and emotionally but is conducive to entrenched positions which do not lend themselves to the search for solutions.  To some extent ENE enables clients to rehearse the arguments they would use within the litigation process and to test their effectiveness with both each other and before an independent person qualified to give an informed and expert view as to the likely court decision.

ENE has the following advantages-

  • Each Client is provided with a view of their likelihood of success in court
  • Each Client is able to assess their respective positions and decide whether it is more cost/benefits efficient to litigate
  • Clients have the opportunity to evaluate whether a mediation or continuing mediation could be workable
  • Disputes can be assessed on paper rather than an attendance
  • A paper ‘hearing’ could be helpful in those cases where clients find it difficult to face each other and prefer not to be in the same room together.
  • ENE is akin to an informal Financial Dispute Resolution Appointment in matrimonial financial cases.

Private FDRs

In some ways these are similar to Early Neutral Evaluations.  The term FDR refers to a court appointment in a family case being a financial remedy application called a Financial Dispute Resolution Appointment.  This is a court appointment at which the parties attend with their respective legal representatives.  Prior to the appointment the parties would have exchanged their individual proposals for settlement and attend this appointment before a judge who hears submissions on each side’s proposals before giving an indication as to how the case should settle.  Although these appointments are listed for an hour, the reality is that the parties are often at court for the entire day in order to thrash out a settlement and avoid further court attendances, further costs and thus bring an end to the litigation to enable each of them to move on with their lives.  Parties are required to ‘use their best endeavours’ to negotiate, discuss and achieve a settlement.   The FDR judge does not hear any evidence and does not male any findings or a decision.  In the event the parties are unable to settle the matter, the judge must make directions for the case to proceed to a final hearing at which a different judge will hear evidence and make a decision.

In the current uncertain times however, these appointments are not being given priority at court and parties will have to wait many months before such a hearing can take place.   In order to achieve finality and certainty earlier, many litigants are engaging in private FDRs.

A private FDR is another option enabling parties in a financial dispute to resolve matters outside the formal court process, and probably earlier. There are options as to who could conduct the private FDR, who may be a retired judge, or a barrister who is engaged by the parties, usually for a whole day, to consider the evidence available in their case so far, read the offers already made and listen to their legal representatives’ submissions.  Just as in the formal FDR, the private FDR ‘judge’ will give an indication as to the appropriate outcome in the case.

A private FDR or early neutral evaluation follows a very similar procedure to this except that it takes place outside the court arena and the lawyer or former judge presiding over it is paid privately for their time by the parties.

Advantages of a private FDR:

  • Unlike the court-based FDR, parties do not have to be engaged in proceedings and are available as part of a voluntary process of trying to achieve settlement
  • An indication of likely outcomes from an experienced practitioner at an early stage can help achieve an earlier settlement thus reducing the costs involved
  • Neither party is bound by the indication given unless they choose to agree the settlement
  • The private FDR can take place anywhere at any time convenient to the parties, their legal representatives and the FDR judge
  • Whereas in a court-based FDR, the judge is appointed by the court system, the parties can choose and agree their private FDR judge
  • The parties in consultation with the private FDR judge are free to agree their procedure
  • Unlike the court-based FDR, the private FDR judge is available to hear and deal with one case over the course of the day so can provide much more assistance to facilitate a settlement being reached.
  • In the event settlement is not achieved, the private FDR judge can assist the parties in narrowing the issues between them.
  • The process is more cost-effective.  A significant difference between a court-based FDR and a private FDR is that the private FDR judge will need to be paid by the parties.   However, choosing this route may ultimately be more cost-effective is resolving the case and achieving an early settlement.

Arbitration

The Institute of Family Law Arbitrators (IFLA) developed the family arbitration scheme to enable parties to resolve financial disputes more quickly, cheaply and in a more flexible and less formal setting than a court room. It is also expected to save court resources and reduce pressure on the already stretched family courts.  Since its inception, family law arbitration has been extended to cover private law disputes regarding children and, most recently, international relocation cases.

In order to begin this process the Clients sign a form (which form depends on whether the arbitration is regarding finances or children or both) agreeing to arbitrate and to adopt the IFLA Rules. The Arbitrator is offered the appointment and then seeks the Clients’ agreement to the terms of appointment.   Once the appointment is accepted, the arbitration begins.  The Arbitrator contacts the Clients to elicit information about their dispute and to canvass views as to procedure, giving the Clients a degree of autonomy absent from litigation.    There is then a preliminary meeting for case management directions as appropriate, in the course of which the Arbitrator decides on the procedure to be adopted.  There are interim applications where appropriate and hearings.  Some matters, where a single issue needs to be determined, may be dealt with on paper.

Where there is a hearing, Clients are usually represented and are cross examined.  Legal representatives then make submissions which are considered by the Arbitrator who will, usually within 28 days, make his or her final award in writing.  The Arbitrator is entitled to withhold the award until payment is received for their services.  The Clients then apply to the appropriate court for an equivalent order with the object of the court either approving or enforcing the award.  Where the consent order is clear on its face that the parties have reached their settlement using arbitration, the courts are keen to approve such orders.

Arbitration (whether Family under the IFLA scheme or CIArb for other types of dispute) has the following advantages-

  • Clients select their decision maker from a panel of qualified (Family Law) Arbitrators
  • Arbitrator is continuously and directly involved once appointed
  • Confidentiality, adaptability and flexibility within the adjudication process
  • The process avoids delays and standardisation resulting in speed and costs savings compared with conventional litigation route
  • Versatility in covering all levels of financial dispute as well as resolving discrete issues in children cases including international relocation
  • Suitable for those who cannot agree or have already reached impasse using other dispute resolution methods
  • Finality and enforceability similar to that which is available through litigation

Dispute Resolution Team

For more information on the Non-Court Dispute Resolution services set out below, please contact Elissa Da Costa-Waldman via the clerks.

Leslie Samuels QC

Leslie Samuels QC


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Elissa Da Costa-Waldman

Elissa Da Costa-Waldman MCIArb


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Saiqa Chaudhry

Saiqa Chaudhry


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Kayleigh Long

Kayleigh Long


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