The government’s latest data paints a startling picture of the delays in family courts in England and Wales, with a backlog of more than 100,000 cases. The family courts deal with a whole range of issues relating to families, including children cases, divorce and child protection to name a few.
The figures show that the number of open private law cases (cases that deal with interactions between individuals regarding children) in August 2022 was 85,706, with an average waiting time of 43 weeks before final order.
These figures highlight the immense pressure that our family justice system is currently under, causing delays that are impacting on families across the country. For many individuals, their experience of dealing with the family court can be one of frustration, lack of judicial availability, stress, cost and increased animosity.
That is not to say that the courts aren't an important route through which people in particularly distressing and vulnerable positions can find legal recourse. However, taking the matter to court may not always be the most appropriate option and this article sets out some alternatives to the court process that individuals can consider, so that they can look to avoid those delays.
Alternatives to court
If you’re thinking about exploring alternative dispute resolution (ADR) then you need to find the right process for your particular dispute. These options are not mutually exclusive to one another and sometimes a combination of professionals and processes can assist you in reaching a resolution.
Each method goes beyond the brief summaries below and we strongly recommend speaking to a solicitor to find the right option for you.
- Solicitor led negotiation is often the starting point for those seeking to resolve a disagreement. Each party instructs a solicitor of their own to advise and negotiate on their behalf through emails, letters and phone calls to try and reach a resolution. This can be the precursor to some of the options set out below, or in some cases sufficient to reach a resolution without exploring alternative approaches.
- Mediation is a voluntary process where an impartial, trained, third party, known as a mediator, will work with a couple to explore potential solutions to family disputes. This often takes place across a number of sessions, which can either be face to face or online. There are different formats of mediation, which can involve the mediator speaking to any children who are involved in the dispute directly or both parties having a solicitor with them in separate rooms, whilst the mediator moves between the individuals to try and help them find a resolution.
- Collaborative Law. In this process, each individual would appoint a specially trained collaborative lawyer, who would work with them across a series of meetings with the other and their own collaborative lawyer. Both individuals and the lawyer will sign a “participation agreement”, committing them to seeking to resolve the issues without going to court.
- Arbitration is a process where individuals enter into an agreement to appoint a qualified third party to adjudicate their dispute and make a binding decision. It is important to note the distinction between arbitrators, who will hear evidence and make a decision, compared to mediators who will try and help parties resolve a dispute, without the ability to bind them to any advice given.
Arbitration is relatively flexible, in that it allows the parties to decide who will be appointed as the arbitrator and they can tailor the process to meet their needs. This often means that the process is relatively similar to how a court hearing will be conducted, but this does not always have to be the case.
- Private Hearings or private FDRs are a simple alternative to using the court system. An FDR (Financial Dispute Resolution Hearing) is usually the second court hearing as part of proceedings where parties have been unable to agree on how to resolve their financial issues after a divorce or dissolution. In this hearing, a judge would give a non-binding evaluation of what they would consider a fair financial settlement to be. The parties then have the remainder of the day to negotiate and try to agree a financial settlement, accounting for the judge’s advice. They are often successful, but some individuals find that judges now have very little time to read the details of their case and the delay to get to the FDR stage can be significant.
A private FDR is where the parties effectively pay to have their own FDR outside of the court system. They will agree to appoint a specialist to act as the judge, as well as deciding the date, location and timing of the hearing. This has the advantage of ensuring that the entire focus of your chosen judge is on your case and allowing a full day for negotiations, which carries with it additional expense.
We would always recommend seeking independent legal advice from a solicitor who can guide you through these options and discuss which may be suitable for you. It may be the case that the court process is the right one for you, but having knowledge of the alternatives may help you in being able to resolve any dispute you have in the most pragmatic way possible.
For more information on this please speak to our Family team, or contact John Ebenezer.