Alternative Dispute Resolution (ADR)

Whilst mediums of media from film and television to newspapers and novels tend to glorify Court proceedings as the definitive method of obtaining justice, the whole story is not being accurately told.

Undergoing Court proceedings are expensive (often to the tune of £5,000 - £10,000 per hearing!), time-consuming and emotionally draining. This is especially the case for Family Court proceedings where relationships which have already broken down irretrievably are further strained through pricey and seemingly endless Court hearings.

The government have, since 31 January 2023, commenced a Transparency Pilot Scheme for Family Court proceedings, at the Leeds, Cardiff and Carlisle Courts. This scheme temporarily allows public reporting of previously private Family matters at Court. Depending on the success of this scheme, this may be implemented across a wider spread of Courts, which may provide another reason in the context of Family proceedings for opposing parties to avoid going through the Court process to settle their disputes.

To avoid the Court process and all the emotional and financial pressures it brings, parties are encouraged to agree to embark on some form of ‘Alternative Dispute Resolution’ (ADR) before instigating Court proceedings. This is an umbrella term for a variety of confidential methods where the parties can attempt to sort out their differences with a third-party mediator, arbitrator, expert, senior counsel or former judge. Two examples are briefly considered below.

Mediation will involve the instruction of a third party mediator, who talk to each party and ascertain where they may be room for compromise and settlement. The mediator will be impartial and provide the parties with options and suggestions how the Court might otherwise determine their dispute. The main benefits of mediation are to enable each party to be heard, and the parties to negotiate a settlement which is suited to their own individual needs.

The use of third-party experts in ‘expert appraisal’ and ‘expert determination’ ADR methods are also commonly utilised to avoid disputes being dragged through the Court system. Expert appraisal involves an independent expert in a field relevant to the claim providing their opinion on an area of fact to help settle a dispute. The expert is agreed between the parties. Although the expert’s opinion is not legally binding on the parties, in our experience it carries a much higher chance of settlement once the parties hear from an independent person the risks that litigation.

Such examples of ADR save on cost and time for clients and provide more flexibility for parties wishing to solve their disputes without blindly going to Court. We have detailed the cost of each hearing above, but parties should also be aware of the current Court delays and it is common to wait as long as six months for a Court hearing. At the very least, ADR methods such as the use of an independent expert can help settle significant parts of a dispute, which may allow the rest of the dispute to be agreed quicker and with fewer costs.

ADR methods such as mediation can help preserve relationships between the opposing parties through their more conciliatory approach focused on reaching mutually agreeable compromise. During Court proceedings, such relationships can sour further as increasingly aggressive action is taken. Although not necessarily a benefit for clients, increased use of ADR serves to ease the burden on the Court system and promotes more efficient usage of national judicial resources. Whatever that can be done to allow the Court to reduce its Covid burden should be utilised in the interests of the long term.

It is worth noting that under the Civil Procedures Rules of England and Wales, the use of ADR is encouraged for the reasons outlined above and there is a risk of adverse costs penalties if ADR is not considered. In many cases, a reason must be provided to the Court as to why a form of ADR should not be utilised for a dispute. Although this is a Civil requirement, the Family Court are becoming a lot more alive to the issue and a new programme is being trialled in which parties are directed to attend mediation, before the case progresses any further.

As a firm, we know that it is important to help our clients avoid incurring any unnecessary costs in achieving a positive outcome for them. We will always consider first utilising ADR to try to reach an agreeable settlement for our clients. Accordingly, choosing to go through Court proceedings is always the last resort for our clients.

If you have any questions on ADR of any other questions relating to any form of dispute, please do contact Claire Darby (cdarby@pearsonhards.co.uk) in our Dispute Resolution team and Emam Rothstein (erothstein@pearsonhards.co.uk) or Elena Mitejko (emitejko@pearsonhards.co.uk) in our Family team. All can be reached on 0208 949 9500.