How to Avoid the Family Courts
That might sound like a strange thing for a family law firm to be asking, but our primary objective when acting for our clients is to secure them the best outcomes and in the most cost-effective way. It is why we set up our fixed fee model, and why to this day we have clients that appreciate knowing exactly how much their case is going to cost from day one – whether the case settles out of court or not.
But we are asked regularly if a case has to go to court, and how long does it take? the answer is a resounding – no, it does not need to go to court.
In a Speech by the President of the Family Division, The Rt Hon Sir Andrew McFarlane, given at the University of Worcester on 31 October 2022 (“The Worcestershire High Sheriff’s Lecture 2022”) Sir Andrew McFarlane began his address with the sub-title “Almost anything but the Family Court’.
After the President summarised the historic development of the Parental Rights from the beginning of the twentieth century, his Lordship summarises inter alia the options open for alternative dispute resolution: –
How to avoid the Family Court
I should have confessed much earlier that I have shamelessly lifted the sub-title for this address from a recently published book of the same name `(Almost) Anything But Family Court’. The author is solicitor and mediator, Jo O’Sullivan and it is published by an admirable support group – `Only Mums and Dads’.
In the Foreword to this book, I said:
`Having practiced as a lawyer, and now sat as a judge, in the family courts for over 40 years, I can tell you that there no `winners’ (other than possibly the lawyers) at the end of family proceedings. To end up `fighting’ a case in the Family Court is a sign of failure and, as this book describes, often a cause for true loss in terms of emotional and mental well-being, and money. Conversely, those who are able to have a `good’ divorce or separation, where they can each feel that a fair outcome has been achieved without undue acrimony, will have gained something of long-term value for themselves and their children. This book is a detailed roadmap towards that positive goal.’
In the course of her narrative, Jo O’Sullivan identifies 12 `Options for avoiding the Family Court’. I will take each in turn and offer a short description:
1. DIY or Kitchen Table Agreements
DIY or Kitchen Table Agreements: here the label says it all. Many couples are able to sort out untangling their arrangements and responsibilities by talking matters through and without the intervention of any professionals or court orders. There are now a good number of self-help resources online or in print and, for those that can, an amicable settlement is worth not only the legal fees that it may save, but is also valuable for the comparative absence of bile and ill-will. A true agreement to which both parties have signed up is also likely to endure.
Mediation: Mediation is the most prominent form of professionally led non-court dispute resolution. A mediator does not judge the couple, or impose his or her own view onto them. Instead, the mediator leads the parties through a structured conversation with each other with the aim of achieving an agreed outcome. The mediator will charge a fee, but Legal Aid is available, subject to a means test and, at the present time, the Ministry of Justice is also providing funding through vouchers worth £500 per couple.
3. Hybrid or Lawyer Assisted Mediation
Hybrid or lawyer assisted mediation: Where one or both of the couple have their own lawyer(s), the lawyers may be present for all or part of the mediation or otherwise be involved in the process. Just because a party has a lawyer does not rule out mediation.
4. Child inclusive Mediation
Child inclusive mediation: where both parents and the child agree, a mediator may meet the child separately to discern the child’s wishes and feelings for the future. The mediator will discuss with the child what, if anything, is fed back to the parents. The child will not be asked to decide the issue themselves.
5. Collaborative Law
Collaborative Law: Many family law solicitors are specially trained to act in a collaborative manner, rather than in the traditional combative manner. The lawyers for each party work together to help a couple to sort things out; they do not work against each other or try to `win’.
6. Round Table
Round Table: Where both parties have lawyers, who are acting in the more conventional manner, it may often be advantageous for there to be a meeting (round a table or online) to investigate options for settlement.
Arbitration: Arbitration is, in effect, private litigation where an appointed arbitrator, rather than a judge provided by the state, is contracted to hear about and then decide the issues. Both parties have to agree to be bound by the arbitrator’s decision. There are advantages over using the Family Court in that the parties and their lawyers choose the arbitrator, book suitable premises for the hearing and do so on a date and time that suits them, rather than waiting for the court office to find a hearing date in the list before an unknown judge. Whilst arbitration is more readily suited to resolving financial issues, it is now being more widely used for determining disputes around a child’s welfare.
8. Arbitration / Mediation
Arbitration/Mediation: Here an arbitrator may direct that the parties engage in mediation, but return to the arbitrator in the event that issues remain unresolved.
Online: there are now some online services who will assist in completion of court forms and other steps in the process.
10. One Couple, one Lawyer
One couple, one lawyer: as a result of the amendments made by the Divorce, Dissolution and Separation Act 2020, which allowed couples to make a joint application to end their formal relationship by divorce or partnership dissolution, there is now a market for legal advice to be given on the `one lawyer, two clients’ (or `one couple, one lawyer’) model. `The Divorce Surgery’, an early entrant into this field, is an arm’s length agency run by two members of the Family Bar. For a fixed fee, which varies depending upon the type and complexity of the issues, the Surgery will appoint a barrister to meet with the two parties, absorb the relevant detail from each about their circumstances, and then deliver advice as to the likely outcome if the contested issues were to be litigated before a court. The model is applied to issues relating to both finance and children. Resolution, which is the umbrella organisation for Family Law Solicitors, has now launched its own one lawyer-one couple scheme [`Resolution Together’] meaning that this option should now be much more widely available throughout the country.
11. Early Neutral Evaluation
Early neutral evaluation: this is very similar to `one couple/one lawyer’ but is likely to be an option used where each party already has their own lawyer. A respected expert lawyer is chosen by the lawyers to look at the issues in the case and provide an early indication of the likely outcome if the issues were to come to court.
12. Private Financial Dispute Resolution Judge
Private Financial Dispute Resolution Judge: This is a further variation on early neutral evaluation that is used in financial disputes, where a privately instructed senior lawyer, or retired judge, conducts a more formal process by which the case for each side is challenged by the judge before she or he gives an opinion as to the likely outcome at court.
Paradigm Family Law have a team of experienced lawyers to help guide you through the process of divorce, just waiting to hear from you.
If you would like more details on this or want to discuss your family law matter, please do not hesitate to contact James, Frank, or Evelyn. Paradigm Family Law offers a free initial consultation and our fixed fee solutions cover financial proceedings from start to finish. You can call us on 01904 217225 or email us to [email protected].