Alternative Dispute Resolution (ADR) is the umbrella term that encompasses mediation, arbitration, and collaborative law. Parties can use any of these alternative methods to try to resolve their matrimonial dispute and reach a financial settlement, although it can also be used for other issues, such as disputes about children.
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What are the different methods of Alternative Dispute Resolution?
The three most often used methods of ADR are:
Mediation
Mediation is probably the most informal of the ADR processes and involves a fully trained mediator guiding negotiations between the parties. The intended purpose is to narrow the issues and resolve disagreements whilst working towards reaching an amicable agreement.
Arbitration
Family arbitration is an alternative to court and involves the appointment of a third party who makes a final and binding decision based on the facts and evidence presented to them by the parties. Unlike court proceedings, parties can choose their preferred arbitrator. This is usually someone the parties believe has the necessary experience to deal with their case. Arbitration may not be suitable if there is a significant dispute over a factual matter, such as one party’s ability or inability to work, for example.
Collaborative Law
Under the collaborative process, each party uses their own lawyer, who is trained in collaborative law, where a series of meetings take place and issues are worked out face-to-face. If the collaborative process fails, the lawyers used are unable to represent their respective clients in court. This is to ensure that everyone is absolutely committed to finding a solution and reaching a settlement.
There is also another, less used, form of ADR, that of ‘Early Neutral Evaluation’ (ENE). This is where an independent third party, such as a barrister or another solicitor, is provided with evidence and information about the case. They then consider the claims made by both sides and give their opinion or evaluation. The opinion can be about the likely outcome of the case or on a particular point of law. However, it is not legally binding.
In what circumstances might ADR be needed?
It is not always straightforward to know which sort of ADR is suitable in order to settle a family dispute, with many ADR options having the capability of adaptation to suit individual cases. Broadly speaking, the following family law matters are areas where ADR might apply:
Child disputes
Disputes involving where a child will live, when they will see the non-resident parent, where the child will go to school, or consent to medical treatment are all common examples of things separating and divorced parents argue over. Mediation and collaborative law are often methods preferred by couples aiming to resolve concerns and disagreements about children. If domestic abuse has been alleged, this may not be the best option because ADR requires an equal distribution of power between the parties.
Divorce and financial settlements
In most cases, negotiating a financial settlement is an integral part of the divorce process. Arguing over finances is common, and can prove costly if the court becomes involved, but using ADR can help communication and settle disputes quicker. It can also be more cost effective.
How should I prepare for ADR?
For ADR to work effectively, both parties need to commit to the process, but before choosing the right method, you should ask yourself the following questions:
- What do you want?
- How much time do you have to commit to the process?
- Do you want to avoid meeting or being face-to-face with your ex?
- What is the cost, and how much do you have to spend?
- Do you have a time limit?
In what circumstances should ADR be used?
ADR is generally less expensive and quicker than going through the court process. Provided communication between the parties has not broken down, it should be considered as a more efficient way to achieve a positive outcome.
In what circumstances should ADR not be used?
If the relationship and communication with it has entirely broken down, then court may be inevitable. Care should be taken in domestic abuse cases where imbalances of power have the potential to undermine an ADR process. ADR requires both parties to be willing to commit to the process, so if one party is disinterested, court may be the only way to resolve the issues.
How much does ADR cost?
The costs of the different ADR methods vary, with most options charging a fee. Mediation costs depend on several factors, including but not limited to, the number of issues to be determined, their complexity, the length of time it takes to reach an agreement, which service is used, and whether legal aid applies.
Important points to consider
ADR schemes are not alternatives to legal advice, which should always be taken before deciding how best to resolve the dispute. In family cases, if you don’t have a solicitor at the outset, you may need to take advice as you go along and it is worth checking with a lawyer between meetings to ensure outcomes that are discussed are fair and equitable. You may also find it helpful to obtain advice before deciding to accept a settlement.
When thinking about opting for ADR, you should consider your bargaining position. If domestic abuse is a factor, it may be safer to get a solicitor to negotiate on your behalf. If the other side refuses to attend ADR, you may end up having to begin legal proceedings in order to force them to engage in the process.
Think about what type of process suits you and your circumstances best. If you are happy to discuss your case openly with your ex, then mediation may be for you. Of course, you don’t have to be in the same room as the other party, as the mediator will have the facilities to offer ‘shuttle’ mediation. This is where the parties are kept apart and the mediator ‘shuttles’ between them. If you are more comfortable sending in financial evidence etc, and having someone adjudicate the matter, then arbitration would suit you best.
The information on this website is to be considered a guide and is therefore not legal advice. You use this information with the understanding that Wiselaw does not accept liability for any direct or indirect losses as a result of anyone relying on or acting upon the information on this website. Whilst we endeavour to provide accurate information, Wiselaw does not accept liability for any errors or omissions on this website.
