Dispute resolution – what does it mean?
February 15, 2013 11:30 am
In April 2010 an initiative was introduced to encourage people to explore alternative options before making an application to the Court. As a result the term “Alternative Dispute Resolution” became increasingly popular. Nowadays the “alternative” has been dropped to reflect the fact that looking to the Court for assistance is not so “alternative” any more.
But what does “Dispute Resolution” actually mean? Traditionally, separating couples who were unable to agree on any issue surrounding their finances or arrangements for their children would apply to the Court for decisions to be made on their behalf. Whilst this is still an option (and is often considered to be the only answer for some, because of circumstances beyond their control), it is not always the only option. So, what are the alternatives?
Solicitor negotiation remains one of the most commonly used methods of dispute resolution. It is important that the solicitors chosen are members of Resolution. Resolution is a group of family lawyers who are committed to easing the pain and financial cost of family breakdowns.
For this reason, those who instruct Resolution solicitors are often able to reach an agreement without the need for costly or stressful Court battles. Very often, agreements are reached through correspondence or even, in appropriate circumstances, round table meetings, where both couples and their solicitors meet in an attempt to discuss their issues and reach agreement.
Any agreement reached, can be approved by the Court to provide certainty. Of course, if you are not able to reach an agreement, it is always open to you to apply to the Court and you are able to keep the same lawyer to assist you in that process.
Where couples choose to resolve their disputes using the Collaborative approach, they both appoint solicitors who are not only members of Resolution but who have also had additional training to deal with matters “collaboratively”. Each party’s solicitor provides support and legal advice along the way. Instead of corresponding with each other a series of face to face meetings are arranged when both parties and their solicitors, (and in some cases other third parties such as IFA’s and family consultants) discuss matters to enable the couple to come to a fair solution in a way that minimises the pain of the family breakdown and enables them to work together in the future. This is particularly helpful when the couples have children and need to maintain an amicable and co-operative relationship.
Both parties sign an agreement at the outset to show their commitment to the process. If that process breaks down (which is unusual), and it is necessary for either party to make an application to the Court, then the solicitors that they used throughout the Collaborative process are disqualified from acting for them. This ensures that both parties can be confident in expressing their concerns and opinions without the worry that those discussions will be used against them in Court. This approach enables couples to work together with their solicitors and advisors to reach the best solutions for them and their family. It does require both parties to have a genuine desire to make it work, a willingness to disclose fully and honestly information about all of their assets and a commitment to resolving matters away from Court.
Mediators are specially trained to help resolve disputes, they are not always family solicitors but many are. Initially each person will meet with the Mediator alone to ensure that Mediation is appropriate in their particular circumstances. Provided that it is, then a series of meetings will take with both parties and their Mediator to assist them in coming to an agreement. Generally it is considered helpful for each party to seek advice from their own solicitor throughout the process and it is very important that both parties take their own legal advice at the conclusion of the Mediation process. The Mediator is not able to advise either party as they are neutral and will not take sides.
Both the parties and their solicitors agree to instruct an arbitrator who acts very much like a Judge but with the benefit of the proceedings remaining confidential and being concluded far quicker than they would if they were in the Court arena. The parties will be bound by the Arbitrator’s decision if this is the route they choose.
As you can see, there are a number of options available to parties who choose to separate. It is always important to meet with a Solicitor who is also a member of Resolution so that they can discuss the various options and help you decide on the best option for you. Should you wish to discuss any issue raised within this article, then do not hesitate to contact Demelza Butler on 01473 343908 or e-mail firstname.lastname@example.org.