Recent statistics published by the Ministry of Justice show that the family courts in England and Wales continue to be plagued by serious delays. The report published on 30 March 2023 indicated that there were 24,273 divorce applications under the new legislation in that quarter alone, and that “the average time taken for a private law case to get a final order granted is at a record high, up nearly 5 weeks from the same period last year”.
The impact of such delays with court litigation has reignited the conversation surrounding the role of alternative dispute resolution methods in family proceedings. In the context of family law, these include negotiation through lawyers, mediation, collaborative practice and arbitration.
Mediation and collaborative practice
The mediation process is one in which a neutral third party is appointed to facilitate negotiation between parties looking to resolve a dispute. The process is privileged, confidential and does not involve a binding outcome; however, it allows both parties a level of control over the final terms of settlement. Mediation has long been encouraged as a dispute resolution forum in family matters. Family Procedure Rule 3 aims to ensure all parties consider out-of-court dispute resolution prior to issuing in-court proceedings, primarily in the form of a Mediation Information and Assessment Meeting (MIAM).
In March 2023, the FPRC initiated a consultation on potential changes to the Family Procedure Rules 2010. It looked at proposed amendments to MIAM exemptions, adjournment of proceedings and failed attendance of MIAMs being considered a “conduct” issue, all considerations assessed with the aim of bolstering MIAM attendance and encouraging out-of-court dispute resolution.
Similarly, collaborative practice also promotes a non-adversarial form of ADR. It involves the two parties and the collaboratively trained solicitors that they have each instructed, who then all meet to negotiate in person. Collaborative practice is particularly effective as it allows the parties greater flexibility when it comes to scheduling, venue and terms of the final agreement. The collaborative process strongly advocates the involvement of trained collaborative support, such as family therapy, financial planning and tax advice. The process is not constrained by a court timetable, and so can be completed in a timeframe built around each party’s calendar. This is a notable option for parents who are still able to communicate effectively with one another but have specific or complicated legal issues that need to be resolved. The lawyers are present throughout the entirety of the process, ensuring particular advice can be given where needed, while also enabling the parties to drive the agenda and deal with the issues which are paramount to the family as a whole.
The Financial Dispute Resolution appointment (FDR) is the second court hearing in financial remedy proceedings, and arguably the most important in assisting the parties in reaching an agreement through indication of a judgment.
However, with the courts becoming increasingly overloaded and under resourced, the advantages of private FDR are worth noting. They allow the parties to select the judge with the most appropriate expertise for their case, as well as choose the venue and time of the hearing. Inevitably the private FDR comes at a cost; however, it is arguable that the costs that would be incurred in a lengthy lead up to a court hearing and the risk of final hearing costs could be far worse.
By engaging in a process that is tailored to the parties’ needs, as well as funded by them, private FDR could arguably be a part of the process that parties can feel more invested in, which could pave the way for a much more effective settlement.
As the above, arbitration is a further form of out-of-court proceedings that provides parties with a faster and more flexible option of dispute resolution for family matters. The process involves the parties appointing an arbitrator, whose judgment on the matter will be binding and final. Similar to other ADR, the flexibility it offers on venue, scheduling and the structure of the process enable the parties to resolve their dispute in a more efficient and personal manner.