As lawyers, we deal with disputes every day. Our role is to identify our clients’ objectives, assess the strengths and weaknesses of their position, anticipate the arguments on the other side and work towards the best possible outcome.
But what if, in some cases, the best dispute strategy isn’t to ‘fight’ at all? This is a question family lawyers are increasingly having to consider.
Separation inevitably brings areas of disagreement, whether that’s about finances, the family home or arrangements for the children. However, disagreement doesn’t have to become conflict. Two people can have very different starting positions while sharing one objective: finding a way to separate without causing unnecessary damage along the way.
We now have a wide range of non-court dispute resolution (NCDR) options that can help separating families achieve an amicable separation. These are all effective and sophisticated ways of dealing with disputes.
Mediation
Mediation gives couples the opportunity to retain control of the outcome and work through issues together with the assistance of a neutral, independent mediator.
This process can be particularly effective where communication has become difficult, but both parties wish to negotiate without the formal route of court.
Collaborative law
Collaborative law involves a slightly different approach, with each party retaining their own collaboratively trained lawyer while committing to resolving matters outside court.
Discussions take place through a series of four-way meetings, allowing legal advice and negotiation to happen around the same table rather than through correspondence, which can be highly effective.
Private Financial Dispute Resolution
Sometimes, however, what is preventing settlement isn’t communication but a genuine difference of opinion about the likely outcome. A private Financial Dispute Resolution (FDR) appointment can be an invaluable option in those cases.
An experienced judge or practitioner gives an indication of the likely outcome, with the aim of aiding negotiations and reaching agreement. This process can avoid the delays associated with waiting for a court-listed FDR.
Arbitration
There will, of course, be cases where an agreement simply cannot be reached. Arbitration provides another route here. The parties appoint an arbitrator to determine the dispute privately, offering greater flexibility over timing and process while still providing the certainty of a decision.
These options don’t have to operate in isolation. For example, a couple might mediate most of their arrangements but use arbitration to determine one discrete issue. The question is no longer simply whether a case should go to court; it’s ‘what does this particular dispute actually need?’
One Couple One Lawyer
One example of how our approach is changing is the One Couple One Lawyer model.
Rather than each person instructing lawyers to advise them separately, couples can work with one lawyer together. The lawyer provides joint advice, identifies the issues that need to be resolved and helps the couple explore outcomes which fall within the range of what the law considers fair.
They don’t have to agree about everything, but the approach can often mean that the dispute is dealt with from a problem-solving perspective rather than as a battle with a winner and a loser.
This process can work very well following mediation, where couples have reached an agreement amicably and want to continue in the same way, with one lawyer helping them put the documentation together to formalise their agreement.
None of this means that court proceedings are extinct. There are cases where litigation is absolutely necessary. There may be safeguarding concerns, domestic abuse, significant power imbalances, non-disclosure or simply a party who will not engage constructively.
Being an advocate for NCDR doesn’t mean being anti-court. It means recognising that good dispute resolution is about matching the process to the issue. We must use our skills to identify, at an early stage, what is preventing resolution and choose the process most likely to overcome that. The options above are sophisticated alternatives to court that are readily available where appropriate.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
