According to a recent survey of 1,000 divorcees, more than a third of respondents were not aware of Alternative Dispute Resolution (ADR) methods such as Family Mediation and Collaborative Practice as options to address issues arising following a divorce. Almost as many wished they had gone down the ADR route. For us these figures pose a crucial question: Why are divorcing couples not being offered alternative dispute resolution (ADR) despite the fact it could be better for them?
This question becomes even more pointed when you consider the results of the survey go on to say a third of respondents felt their divorce would have cost less if they were friendlier and more communicative during the process. At the same time, a staggering two thirds admitted to arguing throughout their divorce.
While divorce is of course never easy, it is clear there is a great desire to find couples the least arduous route to divorce.
The pandemic has caused a huge backlog in the family courts and families have been left hanging on for far longer than they would otherwise have been. This delay and lack of progress causes enormous anguish for those involved and their children.
It is a quandary that has been recognised by the government. ‘No fault’ divorce will finally come into force on 6th April 2022 and earlier this year the Ministry of Justice introduced mediation vouchers to encourage families to use mediation.
However, despite these strides forward – and the headlines these moves have generated – we still find ourselves asking why divorcing couples are not being offered ADR despite the fact it could be better for them.
Alternative Dispute Resolution or ADR is the term which covers the various options divorcing couples can employ to avoid having to go through the family courts.
The most common options include collaborative divorce, mediation, and arbitration.
ADR generally provides a more cooperative way to separate that encourages communication. It is usually quicker than traditional methods and can be more cost – effective. As a result, it is very often less stressful, less expensive, and less acrimonious than the traditional litigious, court-based approach.
Aisling Collins, a partner in our family team and a highly experienced collaborative lawyer and mediator, explains:
“The strength of ADR is that it is more collaborative. It happens outside court, so tensions are reduced. It empowers people to work through all the issues connected with their divorce in a constructive and forward focused way so they can find the resolutions that work best for them and their circumstances. All ADR methods encourage parties to be supported by their lawyer to help make sure the solution is long lasting and effective.”
As there are several ADR options, we thought it may be useful to talk you through each so you can decide which, if any, would be best for you.
It’s also important to say that the best option will depend totally on your circumstances, personalities, relationship, and your children. In some cases, it may be that a more traditional divorce could still be the best option so the first thing to do is always to talk things through with an experienced family lawyer with both court-based and ADR experience.
In a collaborative divorce, you will discuss all the key issues around a table with your partner and both your collaborative lawyers in what is called a ‘four-way meeting’ which offers:
The collaborative process is more constructive and less confrontational, allowing couples to retain control over their decisions whilst being able to count on close support from their lawyer.
During meetings with an impartial and accredited Mediator, the parties will discuss the relevant issues while the Mediator makes sure the conversation is properly structured and all the necessary legal aspects are considered. Mediators help to keep that conversation calm, rational, and productive.
It’s important to note that in a mediation, the Mediator can only facilitate the discussion, they can’t make any binding decisions and they can’t give legal advice. They can give relevant legal information to assist discussions, but parties are recommended to access legal advice before or during their mediation meetings.
One of the advantages of mediation is its cost-efficiency.
A Mediator’s hourly rate may be the same as a lawyer’s hourly rate, but it is shared between the parties thereby reducing the cost of the sessions. It can conclude the negotiation and achieve an agreement more quickly than a more traditional legal process leaving only a small amount of legal work required to formalise the terms into a Court order to be sent by Consent to the court for approval.
Mediation can also be flexible, and a hybrid model adopted where experts and lawyers can be invited to join sessions if the parties both agreed this would be helpful and assist them in reaching a consensus.
In an arbitration the divorcing parties will appoint an impartial but experienced Arbitrator who acts like a private judge to make binding decisions where there is an aspect of the discussions that has reached stale-mate or to adjudicate and formalise an overall settlement.
These decisions will be presented at the end of the arbitration in either an Award (covering the financial aspects) or a Determination (covering their childcare arrangements). These will then be ratified in a Court Order.
The main advantage of an arbitration is they will conclude with a legally binding outcome.
Another reason couples choose arbitration as their method of ADR is that it is wholly confidential and closed to the public and media. You can choose your Arbitrator and make arrangements that suit you. The surroundings will also be less intimidating than a courtroom!
This is very different to traditional court proceedings where you cannot choose your Judge or manage the speed of the process with any certainty.
Also, while the cost savings won’t be huge (you will need to pay the Arbitrator’s fee plus your solicitor and barrister fees), you can agree your own timetable which many find preferable to having the timings dictated by the court.
We trust we have been able to give you an overview of the different forms of ADR available to divorcing couples. It is a real shame that more divorcing couples are not having these options explained to them despite the fact it could be better for them and their families.
We hope the more lawyers talk about, introduce, and promote mediation, collaborative law and arbitration, the more divorcing couples will be offered alternative dispute resolution (ADR) so they can explore these options to try and make their divorce a slightly easier process.
If you are thinking about a divorce or separation and would like to find out more about mediation, collaboration and arbitration and discuss which might suit you best, please email our extremely experienced collaborative lawyer and mediator Aisling Collins to set up an initial call.