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Parents Could Face Costs Orders for Taking Unnecessary Cases to Court

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The government plans to tackle an increase in what it deems “unnecessary” court proceedings by introducing changes that mean parents could be subject to costs orders if they fail to engage with alternative dispute resolution before taking a case to court.

Dominic Raab, the Lord Chancellor, has announced that too many unnecessary civil cases are going to court when they could reach a resolution through alternative dispute resolution (ADR)

Raab’s plan to address this includes alternative dispute resolution being a default process in the majority of family law matters in order to cut the number of cases making it to court. Incentives and disincentives will be introduced to encourage parents to use ADR as their first method, such as costs orders forcing parents to bear the cost of court proceedings.

As a way of pushing families towards mediation, the Ministry of Justice introduced a £1 million voucher scheme for those eligible, with a further £800,000 later being added to the scheme. The voucher scheme was found to be successful, with more than three-quarters using ADR to resolve their family matters, as reported by The Law Society Gazette.

There are many benefits to ADR over court proceedings, with cases being able to be heard and resolved sooner, lower costs and the ability to keep your affairs informal and private. 

What is alternative dispute resolution?

Alternative dispute resolution (ADR) is the process of resolving a dispute without the need for legal proceedings, usually done privately with the parties involved, their solicitors and a third party, such as a mediator or arbitrator.

What alternative dispute resolution methods are there for family law?

There are four main types of alternative dispute resolution methods used for family law matters:

  • Private negotiation – Private negotiation is the simplest and most cost-effective alternative dispute resolution method. The parties involved in the dispute make an agreement between themselves. Sometimes it can be done without a solicitor, but more usually with the support of a solicitor, who either attends meetings or advises their client about how to approach meetings, what to say and what to do once an agreement has been made.
  • Mediation – Mediation is the most common ADR method used. It is where an independent, neutral mediator will help the parties involved to find an amicable resolution by listening to each side and encouraging discussion between the parties. The mediator will not take a side; instead, remaining impartial.
  • Collaborative law – Collaborative law is where the parties meet along with their solicitors in a four-way meeting to reach an agreement between themselves.
  • Arbitration – Arbitration is the process of having an arbitrator listen to facts and statements from each party and make a legally binding decision. This method is sometimes used in child related issues surrounding a relationship breakdown and financial disputes. Although they are occasionally used in family law matters as a method of ADR, it is rare and not many law firms offer it.

What are the advantages of using alternative dispute resolution?

There are many advantages of using alternative dispute resolution over court proceedings. Benefits of ADR include:

Informality – It is not a formal route; you can approach it in a calm and stress-free manner.

Quicker process – Waiting for a court hearing can take a considerable amount of time, meaning the parties involved might be waiting months or years for something that can be quickly resolved with ADR.

Cheaper – Going to court and having a solicitor can be expensive. ADR can be a far more cost-effective option

Keep affairs private – Sometimes going to court feels as if everyone is aware of your situation, whereas, with ADR, your case is kept private, involving only the parties involved, their lawyers and potentially a third party professional, e.g. a mediator.

When should you use ADR over court proceedings?

Court proceedings are not necessary for every type of dispute. Many disputes can easily be solved through ADR, where both parties come to an agreeable arrangement.

Court proceedings should certainly not be the first point of action. If a family law dispute has the potential to be resolved outside of court proceedings, then ADR should be the first option for attempting to come to a resolution. If resolution cannot be agreed between the parties through ADR, court can then be considered.

Alternatively, there are exceptions where court is necessary. For instance, in cases where domestic abuse is concerned or there are safeguarding issues, where it may not be appropriate or safe for the parties to work together.

Are alternative dispute resolutions legally binding?

Whether an alternative dispute resolution is legally binding will depend on the type of ADR that is used to come to an amicable agreement.

Mediation is not legally binding, but when deciding on a resolution, the agreement can be recorded in a memorandum of understanding (MOU), which is a formal document outlining the agreement made. However, an MOU is not legally binding.

If the mediation is relating to a financial agreement, the decision can be drafted into a consent order and signed by the courts, which makes it legally binding.

Arbitration is a legally binding decision made by an arbitrator as the parties must agree to abide by the arbitrator’s decision at the start of the process.

Collaborative law decisions can be made legally binding by your solicitor drafting a consent order and having it signed by the courts.

Speak with our family lawyers in Hoddesdon & Broxbourne

For a friendly, informal discussion with a member of our family law team about how we can help you, please get in touch.