Alternative Dispute Resolution (ADR) essentially means resolving a dispute without going to court and it is an option open to divorcing couples who are attempting to negotiate a financial settlement, as with any other type of dispute.
The advantages of using ADR as opposed to the court process are tenfold, including but not limited to:
- Speed and expense – all forms of ADR are much more cost effective and less time-consuming than going through a court process. A court process could take in excess of 18 months to reach a conclusion (or longer) but with ADR, a settlement could be reached much more quickly.
- Stress and pressure – court proceedings are stressful and can be overwhelming whereas ADR can take place in a much more informal setting and will allow you and your spouse to go at your own pace. This can also help to keep the process more amicable.
- Flexibility and practicality – you and your spouse can explore practical and creative settlements and negotiate whatever agreement works best for you. Within a court process, if you are unable to agree a settlement, a Judge will impose a final decision which may be one neither you or your spouse likes!
There are various types of ADR in the context of divorce, but the main types are as follows.
Mediation involves appointing a mediator (a neutral and independent third party who is trained to work with couples to resolve matters – they ensure communications remain constructive) to sit down with you and your spouse and help you negotiate a financial settlement.
Mediation sessions cost less (per hour) than solicitors and there is also wider financial support available to assist with the costs of mediation that are not available to assist with solicitor fees.
Mediation can be conducted with or without solicitors but usually you find that spouses attend without legal representation and they take separate legal advice which then helps them stay informed of their legal rights throughout the mediation process.
This can be a very cost-effective way of reaching an agreement as you minimise the work solicitors must do but you can still remain informed throughout the process. It also allows you and your spouse to reach an agreement that you are both happy with. If agreement is reached, your solicitors can then draft the necessary legal documents to record that agreement (consent order and statement of information form).
Private Financial Dispute Resolution (FDR) Hearing
This is the private equivalent of a court-based FDR, which is the second of three hearings in financial remedy proceedings. It involves both parties hiring a specialist family finance lawyer to act as a Judge for the day to hear evidence from both sides and then provide an indication of the likely outcome of the case if it were to proceed to a final hearing in the event agreement could not be reached. It is designed to facilitate negotiation and is often successful – most parties will come out of an FDR having reached an agreement with the benefit of guidance from a Judge.
The advantage of a private FDR is that you get to take control of the process. You choose the day, the time, the place and the Judge. You also have the benefit of the Judge’s sole attention for the entirety of the time allotted whereas within a court process one Judge often has to deal with many cases in one day, which does not allow the same attention to detail or helpful input.
Arbitration is where a third party (a qualified lawyer who is neutral and independent) is appointed to hear evidence from both parties and to decide the outcome of the case (as a final hearing judge would within a court process). The decision made in arbitration is final and binding on the parties.
This has the added advantage of finality – it will result in an outcome being imposed on the parties without having to go through the court process (which takes much longer, is much more expensive and is generally more unpredictable as you do not get to choose your Judge).
If you are separating from your spouse and worried about what it will cost and how long it will take to sort out your finances, contact the Family team at Stephens Scown who can advise you on all of these options.