It is an unfortunate reality that the family courts are overwhelmed with a backlog of listings made worse by the Covid-19 pandemic. In turn, court proceedings are taking longer to move through the system, hearings are often adjourned at short notice, and the costs for clients are escalating.
In the past, the Family Court has often been the first port of call for many people who seek to resolve issues concerning their children and/or finances following a relationship breakdown. However, it is now more important than ever that clients first consider other avenues that are likely to be quicker, less stressful and less expensive than court proceedings.
What other methods are available?
There has been a significant push from family practitioners and legislators towards the use of dispute resolution (DR) to resolve family matters outside of court. There are several methods of DR set out below. What works for one couple may not work for another, so it is important to consider which method meets your specific needs and circumstances.
An independent trained mediator will meet with you and your partner to try and narrow the issues in dispute and come to an agreement that you are both comfortable with. In most cases, it is now a requirement that you attempt mediation before making an application to the Family Court. Mediation is an entirely voluntary process and confidential from any ongoing or future court proceedings. If an agreement is reached, it can usually be turned into a legally binding court order without the need to engage in full proceedings.
There are other types of mediation including hybrid mediation where each party has their lawyer present in mediation, and child inclusive mediation where the views of any child concerned are heard.
Collaborative law involves each party instructing their own legal representation. You and your partner and both legal representatives work together to reach an agreement in a non-confrontational ‘round table’ approach. If an agreement is reached, it can usually be turned into a legally binding court order without the need to engage in full proceedings.
You may find that unfortunately you and your partner simply cannot make a decision and that you need a decision-maker. At this point, lots of people make an application to the Family Court so that a Judge can take on this role. However, arbitration could be a more suitable option for clients who find themselves in this situation. Both parties decide on an arbitrator to make a decision to resolve their dispute and agree that this decision should be binding. The arbitrator acts much like a Judge but you and your partner will have more of a say over the process involved and will set your own timetable. The process can be significantly quicker than the court process.
A combination of arbitration and mediation might be the most suitable option. Firstly, you would instruct an arbitrator who would direct that you attend mediation. Usually, the mediation is successful, but if you cannot resolve every issue, you are able to return to the arbitrator who will make the decision for you.
You and your partner will instruct one solicitor to act in a neutral and directive way to assist you both. The solicitor will help guide you to a likely solution or range of solutions. You then decide which of the options works best for your family.
How we can help
If you are seeking assistance but are unsure which route is best for you, we can advise you on which methods could be appropriate in your circumstances. In the event that going to court is unavoidable, our specialist team of highly experienced family solicitors are able to advise you on the process.
Please do get in touch with our Family and Matrimonial team if you are seeking advice regarding a breakdown in your relationship, now or in the future.
Isobel Hubner, paralegal in our Family and Matrimonial team, contributed to this article.