Alternative (Non-Court) Dispute Resolution

An arbitrator is a highly trained individual who has the power to make binding decisions and will have no connection to your case.

Often, arbitrators are experienced family law solicitors, barristers or retired Judges. A qualified arbitrator will hear arguments from both parties about what they say the outcome should be and why, before imposing a decision (acting like a Judge).

Parties that sign up to arbitration agree to be bound by the decision of the arbitrator. A decision can only be challenged in limited circumstances.

Once the decision (known as the award) is made, it’s translated into a court order, which is usually submitted to the court as an administrative exercise without the need to attend court at all.  

Arbitration can be used in most kinds of financial and children disputes.

If you’re involved in mediation, you will usually still be represented by solicitors and/or a barrister within the arbitration process.

As a team with extensive litigation and ADR experience, we can advise and represent you throughout the process, from deciding whether arbitration is right for you to preparing your case for a successful arbitration and identifying the right arbitrator for your case.

Mediation involves a couple meeting with a specially trained family law mediator to discuss their dispute.

The mediator is independent and doesn’t provide legal advice — they simply assist both parties to reach an agreement during mediation sessions.

Once an agreement is reached, a consent order is drafted to reflect the terms of the agreement and turn it into a legally binding and enforceable outcome (once approved by the court).

While solicitors don’t usually attend mediation sessions, taking legal advice and having a complete understanding of your legal position is a crucial part of the process.

We can ensure that you have the right advice at each stage of the process to make fully informed decisions, as well as all the information you need to ensure the outcome is right for you. Once you have reached an agreement, we can draft the court order and help you to obtain the court’s approval.

Often used in more complex disputes, hybrid mediation usually sees solicitors attend mediation sessions to provide support and advice and participate in discussions and negotiations.

As with traditional mediation, taking legal advice outside of mediation sessions is an important part of the process.

Our team of expert family lawyers can help you to prepare for your sessions and make sure that you have the best framework in place.

Collaborative law is a process that involves specially trained collaborative solicitors who help to guide the parties to an agreed outcome over a series of meetings, often involving other relevant professionals such as accountants and tax advisors.

Each party has its own solicitor who advises and assists throughout, both within the collaborative meetings and outside of them.

Those participating in the collaborative process sign up to a code of conduct, which agrees that they will not resort to court unless the collaborative process fails.

As with the other forms of ADR, once an agreement is reached the lawyers involved will help to draft the agreement to reflect the terms within the format of a court order, which is then submitted to the court for approval.

Our Partner Leanne Instrall is a trained collaborative lawyer and can advise you on choosing this path to resolve your family law dispute.

Private FDRs can be used when you are within the court process or have decided to use ADR but still need a bit more input than the mediation or collaborative processes offer.

A private FDR will mirror the FDR process within the court timetable. Someone acting as a Judge will consider both parties’ positions and reasonings before offering guidance on the appropriate parameters for settlement. They will give an indication of what they believe would (and should) happen if matters go to court.

Like other forms of ADR (and like a traditional FDR within the court system), a private FDR is ‘without prejudice’ — meaning that you can’t later be held to any proposals that you make to try and reach a settlement in the event that matters go to court or an agreement isn’t reached on the day. 

Unlike arbitration, a private FDR cannot impose an outcome on the parties.

ENEs are similar to FDRs in the sense that the evaluator will consider the papers and facts in the case and provide an opinion in terms of what they consider the outcome should be.

A standalone review, an ENE is essentially the ‘indication’ that would be provided at an FDR hearing. These can be used in either financial or children matters.

Our expert family law solicitors can expertly prepare your case for private FDR, with a view to achieving an outcome that protects your family’s future, without the need to attend court.

A MIAM (mediation information and assessment meeting) is designed to establish whether mediation is right for you.

You will be required to attend a MIAM in most types of financial or children proceedings before you can issue a court application. This needs to take place before you can issue court proceedings and you will need to get your MIAM form signed off by the mediator. The cost of a MIAM varies between mediators. Sometimes, legal aid or vouchers are available to help with the cost.

Attending a MIAM doesn’t oblige you to attend substantive mediation. Although substantive mediation sessions involve both parties, a MIAM is just between you and the mediator.

If you don’t attend a MIAM when you should have, the court can refuse to issue your court application or adjourn the proceedings to allow a MIAM or other mediation session to take place, avoiding delays and wasted costs. It’s always important to look at whether you need to attend.

There are some types of case in which a MIAM is not required, including when there is real urgency or domestic abuse involved.

We can help to determine whether a MIAM is required in your case.

There are various different forms of ADR available and it’s important to consider which is best suited to the individual circumstances of your case.

We can call on our many years of experience as leading family law experts to help you decide which is right for you. We can then guide you through each step of the process.

Although ADR is referred to as an alternative to court, any outcome reached through arbitration, mediation or collaborative law still needs to be converted into a legally binding court order.

This means that in most cases, the court will still need to be involved in the making of an order on the terms that have been agreed. However, ADR means that the court’s involvement is usually limited to a short, administrative procedure.

If you have already agreed an outcome through ADR and need help to convert it into a legally binding order, we can help.

There are many ways in which the alternative dispute resolution model can be preferable to court litigation.

The benefits of ADR include:

• It’s usually much quicker than the court system, where the wait for court dates can be significant.
• By reducing delays, your costs are often reduced.
• You can pick a date, time and location that suits you and your representatives.
• There is no scope for the press or legal bloggers to attend ADR sessions, so every aspect of your case is guaranteed to remain confidential.
• You can pick the right person to help you resolve your dispute, matching their specialty, experience and approach with what matters to you.

Traditional mediation takes place with just the clients and the mediator present, without legal representatives. Your solicitor can give you advice before and after the session but will not attend.

If you want to use mediation but need the additional support of having your solicitor with you, it may be worth considering hybrid mediation, which solicitors do attend.

As matters stand, you can’t be forced to use arbitration to settle your dispute. Arbitration will only be used if both parties agree to use it and be bound by the arbitrator’s decision.

How long it takes to resolve your dispute in mediation varies according to each case.

Some people find that they only need one or two sessions to get things resolved, but others will need more.

Depending on the issues to be resolved, information may need to be gathered between sessions (such as financial disclosure, valuations or tax advice). This can impact the overall timetable.

As mediators don’t have the same waiting periods as the courts, mediation is usually much quicker than court proceedings.

Though there are exceptions, in most circumstances you will be required to attend a MIAM before you can issue a court application.

During a MIAM, you will be able to discuss with a mediator whether mediation is right for you, as well as the specific issues in your case.

The court has the power to suspend the proceedings if it believes that the parties should mediate, though this doesn’t tend to apply in complex cases.

You will not be forced to attend mediation if the case is unsuitable for mediation or there are safety concerns.

You can’t appeal a decision simply because you don’t agree with it.

As with court orders, there are grounds under which arbitration decisions can be appealed, but they are limited and usually require consent to appeal or permission from the court.

In a word, yes.

When you sign up to the arbitration process, you agree to be bound by whatever decision the arbitrator makes.

However, the arbitrator’s award (decision) isn’t the same as a court order.

Usually, the decision will be converted into a court order as an administrative exercise.

Arbitration can take place anywhere.

One of the main benefits of arbitration is that you get to decide where it takes place. This could be at a barrister’s or solicitor’s office, or a neutral venue (such as the arbitrator’s office).

Some people choose to hire rooms at a conference centre or hotel meeting suite.

There are many factors to take into account when deciding who to instruct to arbitrate your case.

This can include the experience of the arbitrator (particularly in issues that feature in your case), as well as cost and availability. 

Most arbitrators are willing to travel and arbitration can take place remotely (online) but thinking about where you want your arbitration to take place is important.

It’s common for the costs of the arbitrator to be shared equally between the parties.

However, this isn’t always the case and is dependent on the circumstances.

A collaborative law session is always attended by both clients and their legal representatives. 

Sometimes other professionals attend (such as accountants or tax specialists) to help look at how a proposed settlement would work and could be implemented.

Your collaborative law solicitor will discuss with you whether you need anyone else in your meetings and if so, who.