On 29 April 2024, the judiciary brought in new rules regarding use of alternative methods to court. The idea is to encourage separated couples away from court process and into an alternative dispute resolution process to try and ease pressure on the court.
Judges will now require a statement to be completed before every court hearing to clarify whether the couple have attempted to use a non-court dispute resolution method and if not, why not. There will always be appropriate exemptions for cases that have to progress to court with limited or no attempt at non court dispute resolution, but these cases are likely to be increasingly limited and likely referrable to cases that involve domestic abuse and/or urgency.
Judges have been given the power to use the weeks or months between hearings to encourage couples to use a method of non-court dispute resolution. Judges will also have the power to make costs orders, particularly in financial proceedings, if the couple does not properly explore non court dispute resolution methods.
So what are the out of court options?
‘Kitchen table’
- This is ideal for couples who can have amicable and reasonable conversations even if tensions sometimes arise.
- The need for solicitor advice is normally limited to background advice and guidance, helping with legalities and the practicalities of recording children or financial arrangements.
- Kitchen table is the cheapest way of trying to resolve difficulties and sends a positive message to any children involved to reduce tensions.
Mediation
- Mediation suits relationships where there is not a significant power imbalance and where a couple are willing to work together to reduce conflict and avoid court.
- The mediator is a neutral professional who will encourage and facilitate conversations about children, finances or both to see if agreements can be reached.
- The cost of mediation sessions is shared between the couple, making it cheaper, and provides a good platform for co-parenting moving forwards.
Collaborative law
- This is a formalised way of working round table with each of the couple having their lawyer present. The lawyers will be collaboratively trained and a Participation Agreement is entered into to discourage threats of litigation.
- An agenda is set for each meeting and working collaboratively keeps conflict to a minimum and allows for advice and negotiations in real time together.
Round table working
- This works in a similar way to collaborative law but without the preset rules of a Participation Agreement.
- It allows for a more creative forum and, if physically working round table, there is usually genuine willingness to resolve matters quickly and save expense.
- Solicitors will be present with the couple and the format, like collaboration, allows for advice and negotiations in real time.
Early neutral evaluations (ENE)
- Usually chaired by a barrister, arbitrator or specialist solicitor, an ENE gives the couple an idea of outcome if the matter progresses to court.
- It offers an early indication without the formality or expense of actually going to court.
- Solicitors for each of the couple will help prepare for the evaluation, and the submission of information to the ENE advisor is on a joint basis.
- The indication can be delivered either on paper or in a meeting with all in attendance. The purpose is to focus the parties’ minds on likely decisions a court could make to try and facilitate agreement outside the court process.
Private Financial Dispute Resolution Hearings (pFDR)
- For couples already in court on finances but finding progress slow, it is possible to arrange a private hearing to try and move matters along.
- A pFDR hearing is chaired by a barrister with experience in pFDR hearings and the rules operate identically to court process.
- The main difference is that the couple can arrange the hearing to their convenience and outside the court building. This often means having the dedicated attention of the ‘judge’ for the day, which is a luxury often absent from hearings in court.
Arbitration
- Similar to a court process, arbitration provides a binding outcome after hearing from each of the couple or their representative, whether on paper or in person.
- The rules of engagement are the same as court, but one key benefit is being able to jointly appoint an arbitrator who specialises in the particular issue in conflict.
- Arbitration is a less hurried process than court and allows for an earlier hearing and outcome than a court can usually offer.
Hybrid Approach
- Creativity is the benchmark of the Family Team. We realise that one size does not fit all our clients and so we do not limit the way we work to just one of the above.
- The team have extensive experience of all of the above, and offer a bespoke mediation practice to assist clients for whom we are not yet appointed as lawyers.
- Wherever possible, we encourage various ways of working round table to suit the clients’ needs and preferences.
- We work alongside you as a team, with other professionals as necessary, to empower your decision making and wellbeing to give you confidence and control.
Our expert team
The family law team at Prettys has an excellent reputation for its expertise and breadth of skills.
We provide:
- Early assessments
- A considered, frank and honest assessment
- Tactical facilitation to achieve the desired outcome for our clients
- Responsive service
