Alternatives to going to court for family law disputes

Sir Andrew McFarlane, President of the Family Division and Chair of the Family Justice Council, speaking recently during a BBC Radio 4 broadcast has set out his view that “about 20% of the families who come to court to have a dispute about their children resolved, would be better served by at least, first of all trying to sort it out themselves in other ways.”

Before making a family court application, unless some of the limited exemptions apply (for example, in cases where there is real urgency) applicants must attend a Mediation Information and Assessment Meeting (MIAM). This allows applicants to explore, with a mediator, whether mediation would be appropriate for their case. This requirement is strictly upheld and the court can reject an application or order parties to attend if they have not previously attended or wrongly claimed an exemption.

There are many alternatives to going to court when it comes to resolving family law disputes, whether they be about finances or children, and these include:

1. Mediation - the parties agree the identity of their mediator, who is an impartial and independent professional, trained to assist couples resolve disputes. The mediator does not enforce a solution but helps the couple work together to reach an agreement. The Government has recently launched a scheme whereby eligible couples can receive a contribution of up to £500 towards the cost of mediation in a bid to try and encourage couples to engage in mediation first before turning to the courts.
2. Collaborative Law - couples agree in writing with their solicitors to work towards reaching an agreement, without going to court. Negotiations to try and reach an agreement take place between each of the parties and their respective lawyers.
3. Arbitration - the parties appoint an arbitrator (usually a family law barrister or solicitor) who considers the case each party puts forward and makes a decision as to the dispute that will be final and legally binding on the couple.

Alternative forms of dispute resolution may not always be appropriate, for example, mediation is unlikely to be appropriate for a couple where one or both are making allegations of domestic abuse and/or there is a power imbalance between them that cannot be managed by a mediator.

Alternative forms of dispute resolution are well engrained and form part of the family law framework and, given the overburdened family court, are very much encouraged by family judges. Where alternative forms of dispute resolution are appropriate there can be many advantages, not least saving the emotional and financial cost of going to court and also enabling the parties to have more control over the outcome.