Our clients sometimes tell us they were wary of instructing solicitors because they’d heard that doing so can be costly and acrimonious. We always assure them that we’ll give realistic advice which is focused on settlement, and that we subscribe to Resolution’s Code of Practice which obliges us to resolve issues constructively. Even better, we can offer several options to keep their case away from the acrimony of court proceedings. What are these?
Ideal for couples wanting to prioritise the interests of the whole family rather than maximising their own personal return, this process involves a formal commitment to resolve issues respectfully and not to go to court if challenges arise. Rather, the couple work closely with their specially trained lawyers (and other advisers if necessary) as a team, committing to tackle all issues within face-to-face meetings. They control the timetable and craft their own outcomes with the benefit of expert guidance. This means nobody ends up with a settlement they didn’t agree to, nor are they rushed or held up by unpredictable court timetables. They also avoid expensive compliance with onerous court rules.
A vast improvement on conventional mediation (where the parties are not legally advised, limited time is available, several meetings are usually necessary, and everything depends on the skill and proactiveness of the mediator) this option, successfully borrowed from civil cases, ensures that the parties arrive at a meeting with their lawyers, knowing that the agreed mediator (an expert neutral lawyer) has thoroughly mastered all the issues in the case by reading professionally prepared documentation in advance. A full day is made available, with the aim of reaching an agreement by the end of it. The mediator facilitates discussions, if necessary challenges the parties, and steers a path through any obstacles which may arise. The lawyers guide their clients, advise on the law, and ensure a fair outcome. Again, nobody feels that the result was forced upon them, and the savings in time and money compared with the court process are potentially huge.
This is the only one of the four processes profiled here in which the separating couple accept that the outcome will be decided by a third party. Closer in format and effect to a court hearing, this method involves both parties agreeing to be legally bound by the decision of a jointly appointed expert arbitrator after a meeting which bears some resemblance to a court hearing.
The legally-represented parties set and streamline the issues to be addressed; choose their date, venue and arbitrator; and avoid the delays and lack of judge-time which can cripple a day in court, not to mention not having to follow the formal court rules. This can all have significant benefits in terms of timetabling and cost , especially as lengthy court proceedings (during which matters are as yet unresolved) often throw up complications and disputes which incur additional legal fees.
‘FDR’ stands for Financial Dispute Resolution – a hearing which is required when resolving financial issues by going to court. The idea is that the parties, their lawyers, and the judge collectively roll up their sleeves and have a good crack at settling the case. It’s a great idea in principle, because the judge is supposed to give an informal indication about outcomes which the court would consider appropriate, based on the evidence then available. If it’s done well, an FDR can be an effective aid to settlement. Unfortunately, judges often have inadequate time to get to grips with the often very complex issues in family law cases, because of their heavy workloads and the fact that too many cases are in the court list that day, so on many occasions the hearing isn’t as effective as it should be, hampering prospects of a successful outcome.
A private FDR involves the parties and their lawyers selecting an independent, experienced family lawyer – usually an expert barrister – to conduct a meeting in which the FDR idea is fully developed, with the barrister sitting in the role of the judge. There is no time pressure, as the barrister doesn’t have a busy court list to deal with, and will allow the parties and their lawyers enough time to discuss all matters with him or her, and with each other. Comfortable surroundings, scheduled breaks, and refreshments (none of which are available at court) all facilitate focused and very often successful negotiations. And like a conventional FDR within court proceedings, a settlement can only be reached by consent.
Which one’s right for you?
At Goughs we have a 10-strong team of expert family lawyers with a huge collective number of years’ experience in different approaches to resolving issues when couples separate or divorce. Our focus on constructive approaches to helping our clients means that we’ll always be able to offer options to suit your scenario, and talk through which one might be best for you.