DR for litigators: What you need to know and why

For those who are yet to explore Resolution’s National Conference archive, Karin Walker’s webinar is a wake up call for family legal practitioners who are steeped in adversarial approaches to litigation. The Covid 19 lockdown restrictions have applied to court procedures since March 2020 and have led to considerable delays in hearings and administration due to shortages of staff and judges – partly through ill health. The situation has also adversely impacted the welfare of legal advisers and clients, who have been suffering from heightened stress.

Dispute resolution (DR) processes can be tailored to suit clients’ needs (including choice of adjudicator and third-party specialists) and offer flexible, time-saving and cost-effective alternatives to court litigation in most cases involving family finances or contact and residence arrangements for children (except for those involving allegations of violence or complicated technical issues). Family lawyers should find that the application of holistic skills and techniques, applied by DR practitioners, will help them and their clients to focus on constructive solutions, including compromises, which result in lasting agreements. The key to success is trust and openness between the parties and a less competitive and combative approach between family lawyers, which merely serves to stoke the fire of litigation with client funds. Clients are also becoming more aware of and increasingly critical about the standard and range of services offered by family law firms. It is therefore in the interest of practitioners to give full advice about DR options and preferably offer such services, as this approach will lower the incidence of complaints about their advice.

Mediation

Karin Walker provided a helpful résumé of each of the DR schemes, the most familiar of which is mediation. Mediators are impartial third parties and intermediaries who cannot make decisions but can assist couples or family members to reach agreements about issues concerning separation, divorce, property/ finance and children issue, through planned meetings.

Mediation Information and Assessment Meetings act as filters for the suitability of cases for resolution through the mediation process rather than through court litigation. It is a voluntary process and as such people should not be forced into mediation. Family practitioners should, however, advise their clients about the advantages of mediation if it is relevant to the  circumstances. Family issues can be resolved at reduced costs through constructive negotiations. Solicitors/legal advisers can advise clients about the legal merits and viability of proposals and agreements reached in mediation. Karin warned however that mediation can be undermined by couples taking entrenched positions. Solicitors should encourage clients to be realistic about the scope of any agreement which can be reached through negotiations within mediation.

Further flexibility is afforded through hybrid mediation where the mediator can hold confidences of each party but remains non- partisan. This can help the mediator steer the couples towards a solution and is useful for individuals who cannot afford court litigation.

Arbitration

Arbitration offers a “mirror” alternative to court litigation with the advantage that the parties can select a legal specialist of their choice, including a barrister or judge, to adjudicate their case at an agreed venue. Following the decision of the Court of Appeal in the case of Haley v Haley [2020] ECWA Civ 1369, disputed awards made by arbitrators in family law cases may be subject to the same right of appeal as wrong or unfair decisions made by judges at first instance. The decision will encourage practitioners to use arbitration as a cost-effective, faster, and less stressful alternative to court proceedings – particularly in cases involving family financial disputes as there is no duplication of disclosure. As a cautionary note however, this option may be less suited to issues involving children as one parent may try to stall negotiations as a means of wearing down the other party and with the net result that the children’s sense of stability is further destabilised. Karin referred delegates to the IFLA (Institute of Family Law Arbitrators) website for more information about the operation and rules of arbitration.

Early neutral evaluation/Private FDRs

Early neutral evaluation (ENE) procedures are especially useful in breaking impasses where there are complicated issues and arguments presented by both parties. Private family dispute resolution hearings fall within the ENE category of DR options. The procedures are the same as court Financial Dispute Resolution Hearings and a seasoned barrister or judge can be selected (see the IFLA website) to evaluate legal submission (on a without prejudice basis) and assess the likely outcome of the issues if the case was to be heard at a final court hearing. The option is only suited to cases where the parties are keen and willing to contain the costs of increased litigation by following the evaluator’s decision, as the evaluator has no authority to make directions.

Collaborative law practice

A new version of the Resolution Participation Agreement is available for clients who wish to settle family disputes through negotiations conducted by collaborative lawyers via a framework of “four way” meetings. Both lawyers will prepare reports in order to focus the parties’ minds on factors which are central to determination of issues, and the parties may instruct neutral specialists – family consultants, financial experts or legal counsel – to provide specialist input. The difference between this and standard family lawyers’ negotiations is that collaborative lawyers focus on achieving the best outcome for a family rather than for an individual client. It requires good faith and trust between the collaborative lawyers and between the clients, and if the process does not work because one client acts in bad faith or an agreement cannot be reached, both solicitors will withdraw their services and new solicitors will be instructed by both clients.

The Certainty Project

This is a new hybrid arbitration model in which each party appoints a panel solicitor who adopts a non- confrontational approach and is available to provide advice to the client as required. The parties sign an arbitration agreement and agree to be bound by the arbitration process. They will select an arbitrator who will case manage the procedure from the outset, including filing of Form Es in financial cases and appointment of specialists to prepare reports. Parties are referred to mediation and the couple enter into facilitated discussions, and if these are partially resolved within the timeframe allocated, and an agreement is reached, an arbitrator will make an award, which the solicitors will draft in the form of an order to be sealed by the court. Any remaining matters will be determined by the arbitrator; the process may take between four to six months. The project ensures certainty of personnel, timing, costs and duration and if this is successful, it may form the basis of a viable alternative structure to court litigation.

The advantage of the DR process is that clients can mix and match those schemes which best suit their needs in order to remove the stress, mutual distrust and delays, which are now increasing in court litigation. The Certainty Project is a positive step and it will be interesting to see what lessons are drawn from its success by lawyers, clients and the judiciary.