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Alternative Dispute Resolution Options (ADR)

Jan 19, 2023

How to settle it ‘out of court’

The family courts are currently under extreme pressure, with insufficient staff and judges, causing a backlog of work and growing delays.  As such, more than ever, it is worth considering how to resolve financial disputes arising from a relationship breakdown, out of court.

Mediation

If “Kitchen Table” discussions are not an option for you, we would recommend that you consider attending mediation. A mediator will help you and your partner communicate, with a view to agreeing an outcome between you than can then be made into a legally binding order without having to attend court.

Private hearings (out of court)

Rather than having a court-based hearing in front of a judge, your case may be suitable for a private hearing, before a barrister or judge, in their private chambers or some other agreed non-court location.

Such hearings can replace court-based “Financial Dispute Resolution” hearings, known as FDRs and also Final hearings.

An FDR is a hearing at which the parties present to the judge all the facts and figures in their case and invite the judge to give an indication as to what, in their view, a fair outcome might look like. The indication will be non-binding but it is often accepted by both parties as the best way forward and in those circumstances, can be made into a legally binding financial order.

One advantage of a Private FDR is that the parties choose the judge and the date and there is no need to wait “in line” for a court listing. This can save considerable time. Another advantage is that the hearing will be completely private.  Thirdly, the hearing won’t be cancelled at the last minute for lack of judicial capacity (unlike with a court-based hearing). On the other hand, it will be necessary to pay a fee for the private judge, so this will add to the overall costs.

Although a private “out of court hearing” is not necessarily a “cheaper” option, in our experience both parties attend with an open mind, wanting to reach a settlement and thereby avoiding the emotional and financial cost of future court-based hearings

A final hearing in court before a judge follows an FDR, where it has not been possible to reach a settlement at the court-based or private FDR.  Arbitration can be used as an out of court alternative to a final court hearing.

In family arbitration, the parties choose the arbitrator, the venue and the date.  The parties will give the arbitrator all the facts and figures and invite them to make a final, legally binding, determination as to how to redistribute their capital, pension and income resources.

As with a private FDR judge, the parties will have to pay a fee for the arbitrator.

The flexible and private nature of arbitration often makes it a more attractive and cost-effective option than court.

If you are interested in settling your dispute out of court by pursuing an ADR option, or you would like some further information, please contact us  and a member of our family team will be pleased to assist.

This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter. 

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Penny Marshall

Penny Marshall

Chartered Legal Executive, Family Law

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