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Alternative dispute resolution - overview
The Family Procedure Rules 2010 introduced a pre-application protocol which provides for all potential applicants for a court order in relevant family proceedings, before making their application, to have followed the steps set out in the Protocol. This requires a potential applicant, except in certain specified circumstances, to consider with a mediator whether the dispute may be capable of being resolved through mediation.
The Law Society's Family Law Protocol requires solicitors to explain at an early stage, unless it is inappropriate to do so, the mediation process or such other form of alternative dispute resolution (ADR) as may be appropriate, and advise on its benefits, costs and limitations. It should be kept under review throughout the case. ADR may be appropriate for spouses, cohabitants and civil partners in relation to disputes concerning separation, children, finances or any other issues arising out of a relationship breakdown. It is not suitable for cases where there has been a history of violence.
ADR is only appropriate were both parties are willing to negotiate and are keen to resolve matters consensually. Public funding (legal aid) is available in some circumstances for mediation and (as from 14 October 2010) collaborative law.
Mediation
Mediation is the process by which parties agree to the appointment of a mediator trained in dispute resolution. The mediator:
is neutral and impartial
cannot make decisions, but assists the parties to make their own informed decisions
provides information about the process, but will not give advice
will generally recommend the parties seek independent legal advice
meets with parties to identify the issues
agrees with the parties how and when disclosure is to be produced
discusses the options in light of the disclosure and helps facilitate an agreement
produces a mediation summary for the parties to take to their respective solicitors
The parties generally seek the advice of their solicitors on the terms agreed. It may be that further negotiations take place as a consequence of that advice. If appropriate, the solicitor will prepare a consent order for the court.
If referring a client to mediation, the protocol recommendation is that the referral should be to a mediator who has undertaken appropriate training and obtained accreditation with an established organisation. The mediation process can be ended by either party at any time. Mediation may be compulsory for parties seeking public funding.
Collaborative law
Collaborative law is a comparatively new process that works on the basis of contracting out of using the court process. The process is suitable for issues regarding children and finances, and is notable for the following:
both parties appoint lawyers
four-way, face-to-face meetings between lawyers and parties replace traditional negotiations via correspondence
a participation agreement will be signed at the first meeting that disqualifies the lawyers from acting if the case becomes litigated
lawyers may still act at court if consensual due to a successful collaboration, eg filing a petition or consent order
disclosure should be produced in an open and honest fashion
an agenda will be set and a format agreed for the production of financial disclosure
third parties may be involved, eg pensions experts
the parties and their lawyers have control of the process, which may result in a quicker resolution and is not dependent on a court timetable
on reaching an agreement, either heads of agreement or a consent order will be drawn up, as appropriate, the latter to be filed with a specially adapted notice of acting
if the process breaks down, it can be ended under the terms of the contract on 21 days' notice
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