Alternate Dispute Resolution
Covid 19 has forced all of those working in the legal sector to think outside the box and consider other means of assisting families to find a resolution at the earliest opportunity. Most people have heard of Mediation and how useful the process can be. However, what happens to those families where mediation has not been successful or if one parent is not willing to engage?
Unfortunately, parties tend to find themselves caught up with the Court process which can be emotionally draining and expensive.
Covid 19 has resulted in significant delays in the justice system and families are left in a state of limbo. The majority of Final Hearings are currently on hold whilst case applications increase daily. Child Arbitration is a form of Alternate Dispute Resolution which takes place outside the Court arena whereby both parties agree to be bound by the written decision of the Arbitrator.
The beauty of Arbitration is that it can be dealt with on a paper basis or providing oral evidence. All types of Child Arrangement Orders can be considered such as Live With Orders, Spend Time With Orders. It can also deal with specific issues such as holiday arrangements and interim issues, whether a child should return to school during Covid 19 for example.
If you are already within the Court system or going through mediation, Arbitration can in fact compliment the process especially in complex cases or when only one issue for example needs to be determined.
The process itself is straight forward. The parties choose and agree on a member of the Chartered Institute of Arbitrators. In cases where parties are unable to agree, the Arbitrator is appointed by the IFLA. Parties can have a look at the Arbitrators CV to ensure they have someone tailored to their particular case with the right expertise.
Although there is an initial financial outlay in terms of the Arbitrator and venue itself, there are significant cost savings using this process. The route is quick and not drawn out as it would be in the Court system. This cuts down on protracted correspondence and solicitors fees. The parties also have the added benefit knowing the Arbitrator has read the case papers carefully and has the time (all day if necessary) to assist the parties reaching an agreement. Parties find themselves in a much more relaxed atmosphere placing them in a better frame of mind to concentrate on the case, rather than dealing with distractions and interruptions one would have in a Court building.
What if I need an expert?
Parties can also be rest assured that it is possible to appoint an expert such as an independent Social Worker. Cafcass often take 3 months to prepare a report in the Court system whilst a Social Worker can carry out the same piece of work within 28 days.
Parties should not be concerned about procedures not being followed. In the same way as a formal Court application, safeguarding checks are undertaken by Cafcass and background checks are completed before any Determination is made.
What happens if an Application is currently before the Court?
Parties should not be deterred if they are already in the Court process because their case can be adjourned to give them opportunity to resolve the dispute through Arbitration or Mediation without affecting their rights to resume the Court proceedings. The Court effectively ‘stays’ the proceedings pending the outcome of Arbitration.
Can an Arbitrator make a Court Order?
The outcome of the Hearing is recorded as a Determination as opposed to a Court Order. However, the parties can then apply to the Court for an Order in the same terms as the Determination if an Order is their preference.
Can a Determination be enforced?
The President of the Family Division, Sir James Munby has recognised the Arbitration process and Determinations made. It is therefore safe to assume other Judges will follow.
Financial Dispute Resolution Hearings
ADR can also be applied to parties who are trying to reach a financial settlement. The impact of Covid 19 has made Private FDR’s more popular and at present, they are being encouraged by the judiciary. Ultimately, this will take pressure off the local County Courts. With pressure of costs increasing and longer Court waiting times, lawyers are also advising parties to engage in Private Dispute Resolution Hearings.
How does a Private FDR work?
Both parties will agree on a time and date and appoint a Barrister or retired Judge to act as the FDR Judge. Parties can be rest assured that this is a joint decision which allows them to agree how much they are both prepared to pay for the Judge, representation and venue.
Parties do not need to feel the process is being undermined because full and frank disclosure including any valuations are completed beforehand.
Why not wait for the Court FDR?
The advantage of a Private FDR is that the Judge will set aside a whole day dedicated to reading the case papers, hearing the parties and indicate what they would Order if they were the Judge at Final Hearing. Essentially, the Judge provides both parties with a neutral evaluation which will assist them determining whether it is cost proportionate to proceed with a Trial, taking into consideration merits of their case.
How expensive is a Private FDR?
Although there is a financial outlay to appoint a Solicitor, Barrister and Judge, when compared to several months of solicitor’s fees and dealing with any parties acting as litigant in person, the process can be much more cost effective.
During the Court process, the Judge’s time can be restricted depending on how many cases they have to deal with that day. This can leave parties aggrieved if they do not feel they have been listened to or granted a reasonable period of time to make decisions. Sometimes rushed, the parties find themselves proceeding with a costly Trial without having the opportunity to reflect properly on the Judge’s comments or advice given.
What are the advantages of a Private FDR?
The parties can be assured that all the preparation has been undertaken and costs are transparent. Overall, the parties will find their legal bill is significantly reduced because there are no waiting times and all parties are dedicated to the case for a full day. The rate of success for a Private FDR is much higher than say an FDR before the Court.
Parties can choose the venue for the FDR to take place. They may feel more comfortable in their solicitors’ office, Barristers Chambers or in their own home during Covid 19. This provides for a more relaxed atmosphere as opposed to finding themselves in a Court Building causing stress and anxiety.
Private FDR’s are becoming more popular and no doubt will pave the way for parties to resolve disputes between themselves rather than resorting to Court action. If you would like further information on Child or Financial Dispute Resolution options, please contact Director, Laura Clapton on 0113 322 9222.