Alternative Dispute Resolutions

If the recent lockdown experience has taught us anything, it is probably that life is too short, and that waiting for a clunky court process to deliver might be a case of looking in the wrong direction, and far too reminiscent of all those long waits for Ocado.

The end of a relationship does not have to mean actually going to court. In fact, for those who pay heavily for family law advice, the smart money is on Alternative Dispute Resolution, or the “Private” Court process that embraces: 

• Arbitration
• Private Financial Dispute Resolution Appointments
• Early Neutral Evaluations

The choice is between a tailor-made process to suit you, with a judge selected by your lawyers as being the best person to tell you your fortune, or an over stretched, unpredictable and much delayed court system.

Ask most divorce lawyers what their choice would be, and you will probably understand how the alternatives to court are now so popular.

If you have the slightest concern about media attention, then the confidentiality that this approach provides is a “no brainer”.

Arbitration

Like so much of the non-court approach to divorce, the key to arbitration is that you choose your judge, and not have one chosen for you. The lawyers from both sides choose the arbitrator, in discussion with their client.

It makes sense that no lawyer representing your best interests would agree to the selection of an arbitrator, with a reputation for favouring a particular type of client. What you will get by the selection process of the arbitrator, is someone who is given the power to make binding decisions regarding your future, and who both of your lawyers respect to “get it right”, in an area of law where the discretion of each judge is wide.

The arbitration is confidential, and can deal either with everything, or just discrete issues.

An arbitration will be run at your pace, but will be determinative.

Early Neutral Evaluation

The idea of the Early Neutral Evaluation (ENE) is to save money. Before you start a combative and expensive court process, the selected “judge” will also attempt to predict the future; the most likely outcome, before the emotional and financial expense of the proceedings takes its toll.

As its name suggests the ENE aims to point everyone in the right direction, not just towards the result, but also how your money is spent on your lawyers.

At its best it provides an early solution to everything, at worst it will give you a position from which to gauge the advice of your own or you partner’s lawyer.

Private Financial Dispute Resolution Appointments (PFDR)

This is effectively a breakout from the court system. Much like Arbitration, the value of the process rests in the decision to choose a judge who both of your lawyers have confidence in.

If the appointment is a success (and probably something close to 90% are), then the agreement will be referred back to the court for approval by post.

If unsuccessful, then you can opt back into the court system, or if speed, convenience or privacy are important to you, appoint an arbitrator.

Mediation

Without any disrespect to mediators or the process, mediation might easily be understood as the DIY of family law.

A mediator is appointed by a couple to manage their discussion about how they divorce, share income and capital, or parent.

The mediator should not give advice, but in facilitating a discussion, some are more directive than others.

Mediation can be an efficient, economic alternative to court, or the options mentioned above.

Mediation should sensibly be run in tandem with independent legal advice, and any agreement reached in mediation tested by a second opinion.

Experience

Successful PFDR in respect of:

• A number of International Families regarding the division of world-wide assets.
• A farming Family with International equestrian interests.
• A number of divorce settlements involving the division of inter-generational wealth.
• Families and Individuals where privacy and confidentiality are primary considerations.