Examples of ADR include mediation, arbitration, collaborative law and negotiation.
A mediator is an independent third party that helps opposing parties resolve conflicts. A mediator does not provide legal advice; mediators are neutral and their role is to enable negotiations by use of an interactive process and facilitate an agreement between the parties.
Mediation can be particularly beneficial in family matters, whether the dispute is between divorcing or separating couples, grandparents, step-parents or children, because it can provide a safe environment in which disputes can be aired and is generally considered to be less stressful than Court proceedings. However, mediation is not appropriate for every case and the mediator will assess whether or not your matter is suitable, for example, if there is or has been domestic violence or the parties live in different areas of the country.
If your matter is not suitable for mediation, the mediator will provide a form that is to be filed at Court with your initial application, and this will detail the reason as to why mediation is not suitable. Once you have reached agreement at mediation, it is recommended that you seek independent legal advice on the terms of that agreement and subsequently request your legal adviser to prepare a Consent Order.
It should also be noted that, with particular regard to financial matters, any agreement reached during mediation will not be legally binding until the Consent Order has been approved by the Court, and that the Court has the power to refuse an agreement if it does not feel it is fair and just in all the circumstances. Divorcing couples should note that there is a requirement for parties to attend a Mediation Information and Assessment Meeting (MIAM) before they can issue financial proceedings at Court.
For further information on mediation or to find a local mediator, please follow the link below.
Arbitration is relatively new to family law and is not widely used at present, however, there are distinct advantages to using this system. In essence, arbitration is a private Court. The process requires the parties to submit their dispute to an agreed arbitrator, who in turn will adjudicate the matter (much like a Court Judge) and provide the parties with a binding decision.
Arbitration can be cheaper than Court proceedings, even though the parties fund the fees of both the Arbitrator and the venue at which the “proceedings” are held. Timetables for dealing with the matter are agreed between the parties, thus enabling disputes to be resolved within a few months as opposed to conventional proceedings, which can take several years.
It is recommended that both parties retain their own independent legal adviser throughout the arbitration process.
In relation to financial matters, any decision made by the arbitrator should be contained within a Consent Order and sealed by the Court so as to make it enforceable, but unlike an agreement reached through mediation, the Court will respect and abide by the arbitrator’s decision.
For further information on arbitration or to find an arbitrator, please follow the link below.
Collaborative family law involves round-table meetings with the parties and their legal representatives. Disputes are negotiated direct between the parties and their representatives, meaning the parties have the benefit of legal advice immediately, at the point of discussion.
As negotiations are direct between the parties and their legal representatives, this form of ADR is considered to be more flexible than Court proceedings as the parties are not bound by the rigorous constraints that can be imposed by the Court. Collaborative law provides additional flexibility in that the parties can determine the timetable for dealing with the various aspects of the negotiations.
By entering into the collaborative process parties are agreeing that they will not enter into or issue Court proceedings. If either party subsequently decides to issue proceedings this will invalidate any agreement reached through the collaborative process and will also prohibit either of the existing legal representatives from continuing to act for their respective client, thus requiring the instruction of additional legal representatives.
As with any financial settlement, any agreement reached through the collaborative law process will need to be contained in a Consent Order and sealed by the Court so as to make it binding and enforceable.
For further information on collaborative law or to find a collaborative lawyer, please follow the link below.
Alternative Dispute Resolution (ADR) is all about negotiation. Negotiation can take place in various forms, as can be seen from the different options detailed above. Negotiation can also take place on your behalf between your legal advisers, which could include both written and/or oral negotiations. The parties to a dispute will always be consulted and advised upon negotiations as they take place. This type of negotiation is outcomes led and largely directed by the client’s desired outcome. In the event negotiations fail, any of the above options can be pursued or the appropriate proceedings issued at Court.