How to resolve a family dispute without going to court

How to resolve a family dispute without going to court

Going to court is not the only way to resolve issues following a separation or divorce. Mediation, negotiation and other forms of non-court dispute resolution can help families reach an agreement about children, finances or property, often with less conflict and greater flexibility.

These options are sometimes referred to collectively as non-court dispute resolution, or NCDR. They can be considered before court proceedings begin or at any stage of an existing case.

The family court must consider throughout proceedings whether non-court dispute resolution would be appropriate. Depending on the circumstances, the court may also take the parties’ approach to NCDR into account when deciding how a case should progress or when considering legal costs.

However, every family is different. The right approach will depend on your circumstances, the issues to be resolved and whether both parties are willing and able to take part.

What are the alternatives to family court?

There are several ways to resolve a family dispute outside court.

Mediation
A trained, independent mediator helps you and your former partner discuss the issues and work towards an agreement.

Mediation can be used to resolve questions about:

• arrangements for children
• finances (including property and maintenance) following separation or divorce

The mediator does not take sides, nor do they provide legal advice to either person or impose a decision. You will still need advice from a family solicitor alongside the mediation process.

Mediation may give you greater control over the outcome and can be quicker and more cost-effective than court proceedings. Your solicitor can put the agreement into an appropriate format and submit it to the court for approval which will make it legally binding.

Resolution Together: One Solicitor One Solution
Resolution Together enables a separating couple to receive advice from one jointly instructed solicitor.

The solicitor will speak to each person separately at the outset to assess whether the process is suitable. If it is, subsequent advice and communication will be shared with both clients, and meetings will take place together.

This approach may be appropriate where you:

• share the aim of reaching an agreement
• are willing to provide information openly
• feel able to make decisions together
• have no conflict of interests or concerns about controlling or abusive behaviour

If an agreement is reached, the solicitor can prepare the necessary documents and advise on the steps required to formalise it.

Resolution Together will not be suitable for every couple, but where it is appropriate, it can provide a constructive and streamlined way forward.

If you are looking at resolving matters jointly Fiona Ryans would be happy to discuss whether Resolution Together is the right approach for you, so please do get in touch with her.

Solicitor negotiation
You and your former partner can each appoint a solicitor to negotiate on your behalf.

This may be helpful if you would prefer not to negotiate directly or would feel more comfortable having your own legal adviser representing your interests. It can work particularly well where there is a good level of financial disclosure, the issues are reasonably clear and both parties want to avoid court proceedings.

If an agreement is reached, your solicitors can advise on how it should be recorded and, submit the agreement to court for approval.

Collaborative Law
Under the collaborative process, you and your former partner each appoint a collaboratively trained solicitor. Everyone (including the solicitors) signs an agreement committing to resolving the issues without going to court. Discussions then take place in a series of joint meetings.

Collaborative law encourages open communication and practical problem-solving. It may be particularly helpful where parents want to preserve a constructive relationship and continue working together after separation.

If the collaborative process breaks down and court proceedings become necessary, the collaborative solicitors cannot continue to act. Both parties would need to appoint new solicitors. It is important to understand this before choosing the process.

Fiona Ryans is collaboratively trained and can explain whether collaborative law may be suitable for you.

Family arbitration
In family arbitration, you and your former partner appoint an independent arbitrator to decide some or all of the issues between you.

Unlike a mediator, an arbitrator makes a decision. That decision is binding on the parties and will be incorporated into a court order.

Arbitration provides greater flexibility over the timing and location of hearings and the choice of arbitrator. It may also allow a dispute to be resolved more quickly than through the court timetable.

It can be used for financial matters and disputes concerning children.

Private financial dispute resolution
A private financial dispute resolution appointment, often called a private FDR, is designed to help separating couples resolve financial issues.

Parties jointly appoint an experienced family barrister or judge to review the available information and provide an indication of the outcome a court might be likely to reach.

That indication is not binding, but it can help both parties assess their positions realistically and move negotiations towards a settlement. A private FDR can offer greater flexibility over timing and the choice of evaluator than the court process.

Hay & Kilner’s in-house family barrister Kate Fenwick can advise on private FDRs and how the process could work in your circumstances.

Early neutral evaluation
During early neutral evaluation, or ENE, an independent expert considers each party’s position and gives a non-binding opinion about the likely outcome.

The evaluation can help to:

• identify the main areas of disagreement
• narrow the issues that still need to be resolved
• encourage realistic expectations
• provide a basis for further settlement discussions

Kate Fenwick is experienced in early neutral evaluation and can provide an independent assessment using her experience as both a barrister and a judge.

Which option is right for you?

The best approach depends on what you need to resolve and the nature of the relationship between you and your former partner.

For example:

• Mediation may suit couples who can discuss matters with the support of an independent mediator.
• Resolution Together may be appropriate where both people share the aim of reaching an agreement and can work openly with one solicitor and trust each other.
• Solicitor negotiation allows each person to receive separate advice without negotiating directly.
• Collaborative law provides a structured series of joint discussions supported by two trained solicitors.
• Arbitration offers a private route to a binding decision.
• Private FDR or early neutral evaluation can provide an expert view to help financial negotiations move forward.

More than one method can sometimes be used. For example, mediation may resolve most issues, with arbitration used to address a remaining point.

Speak to our Divorce & Family Team

If you are separating or facing a family dispute, you do not have to decide on the right process alone.

Our expert team can explain the available options, help you understand the potential benefits and limitations of each, and recommend an approach suited to your circumstances.