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Dispute Resolution Week – Alternatives to Litigation

Nov 24, 2015
Monday 23 November 2015 kicks off Dispute Resolution Week – a week dedicated to promoting alternative methods of dispute resolution. With the rise in court fees and almost complete withdrawal of legal aid, dispute resolution is playing a much bigger part in the area of family disputes.

Aside from arm wrestling or flipping a coin, there are various alternatives to going to court such as mediation, arbitration, etc. Each method has their own advantages and disadvantages. Although people are aware that these alternatives exist, many find it difficult to tell the difference and thus decide which is more appropriate for them. 

Negotiating between yourselves

If you and your partner are still on good terms, it may be appropriate to negotiate between yourselves regarding issues such as division of property or arrangements for the children. Even if you agree, it is important to take legal advice to make sure that you fully understand the implications of any agreement.

Advantages Disadvantages 
Having a conversation with your partner is certainly going to be cheaper than litigation. Depending on the how effectively you can discuss the issues, reaching an agreement may be relatively quick and painless as opposed to going through the courts. Obviously this method may not be suitable for everyone, particularly where one party has a history of dominance over the other or where there are complicated financial arrangements to discuss. An agreement may not always be that easy to reach. In the event of a stale mate, an agreement may never be reached through negotiation alone.

Mediation

Mediation is a process whereby couples can work things out together to help bring the relationship to a close in an amicable and cost effective manner. The process involves talking through the issues with the help of a trained mediator. The mediator takes an impartial role in the discussions and helps the couple come to an agreement. Mediation is not to be confused with counselling or as a way of fixing the relationship. 

Advantages Disadvantages 
Much cheaper than litigation and the addition of an impartial coordinator may help the parties to see things from the other side’s perspective. It may not be over in one session, but returning to a mediator will be a lot cheaper than going back to court. A mediator cannot force the parties to reach an agreement. One may refuse to accept a proposal or simply not engage effectively with the process. In situations where there is no end in sight, it may need the hand of an arbitrator or a no-nonsense judge to finalise an agreement.

Collaborative process

The collaborative process allows you to work through your issues with your former partner however each of you will have your own specially trained collaborative lawyer by your side. At each meeting you will meet together with your solicitors to work out the details of your separation.

Advantages Disadvantages 
Although this will incur legal fees, the parties will help avoid costly litigation and have the added benefit of obtaining legal advice throughout the discussions. A collaborative lawyer is also specially trained with the specific objective of avoiding lengthy proceedings and keep matters outside of litigation. The number of meetings will depend on the circumstances. The more meetings that are needed the higher the legal bill will be at the end of the road. If the parties still cannot come to an agreement after several or more meetings, they will have to look elsewhere as well as being lumbered with the bill.

Arbitration

Arbitration is a way to reach an agreement where couples are unable to sort it out themselves (either through negotiation, mediation etc.). The matter will be overseen by an arbitrator who, like a judge, will ensure that all the relevant facts and submissions have been collected. The arbitrator will then give a ruling or “award”. The choice the arbitrator makes must be one that both parties agree on. However, once the process has started, you cannot back out without the agreement of the other party and you agree at the outset to agree the award.

Advantages Disadvantages 
Arbitration is speedy, flexible, confidential and cheaper than litigation. You also retain the ability to select your own arbitrator best suited to dealing with your specific circumstances. 
Once you are in, you are in. Some people may also prefer to retain their role in the overall decision making and not surrender that to another party.

How to choose

Each couple is different. In the event that the relationship has broken down and you are thinking of separation, ask yourself the following questions:

  1. Are your financial affairs complicated?
  2. Do you want the process to be as amicable as possible?
  3. What would be best for your children?
  4. Are you against a powerful personality and do not want to deal with things on your own?
  5. Do you want to keep costs down?

For a complete guide to alternative dispute resolution, please visit the Resolution website or alternatively contact Karen Pritchard or any other member of the Family Team on 01279 755777.


Karen Pritchard

About the author

Karen Pritchard

Karen joined Nockolds in September 2015. Before joining the firm, Karen graduated with a First Class degree in Law from the University of Westminster and ...

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