Beyond the Family Courtroom: Why ADR is the Future of Dispute Resolution

Alternative Dispute Resolution (ADR) is the name given to the many number of ways of potentially resolving a dispute as opposed to taking matters to Court. There are many forms of ADR, such as, mediation, arbitration and collaborative practice.

• Mediation involves an impartial third party, known as the Mediator, who guides discussions between the parties to help them reach a voluntary agreement. Unlike a Judge or Arbitrator, the Mediator doesn’t determine the outcome of the dispute. Instead, they foster understanding of the law and assist the parties in identifying and addressing their needs.

• Collaborative Law involves both parties and their legal representatives working cooperatively to reach a mutual agreement without resorting to Court proceedings. This voluntary process allows the parties to collaborate, address their concerns, and find a tailored solution that works best for both.

• Arbitration is another form of ADR where a trained arbitrator listens to both sides of the dispute and seeks to reach a fair settlement. Typically, each party is represented by a solicitor during arbitration. The arbitrator considers the arguments, reviews the evidence, and then makes an informed decision intended to resolve the dispute in a more cost-effective and timely manner.

Some forms of ADR are compulsory to engage in such as the Mediation Information and Assessment Meeting (MIAM) for the Applicant in the proceedings before taking the case to Court (subject to certain exemptions, for example, if one party has experienced domestic abuse at the hands of the other party (paragraphs 20-27 of PD3A)). This is especially relevant in private law Children Proceedings - section 10 Children and Families Act 2014.  FPR Rule 3.10 mandates that Judges must verify whether any claimed MIAM exemption has been validly asserted. If the exemption is found to be invalid, the Judge has the authority to direct the parties to attend a MIAM and may adjourn proceedings to facilitate this.

The case of Churchill v Merthyr Tydfil Borough County Council (2023) affirms that Civil Court Judges can pause proceedings to allow for ADR, as long as it does not prevent the parties from returning to Court if necessary. Additionally, cost orders may be imposed on a party that has obstructed the ADR process.

Recent Ministry of Justice data reveals that it takes an average of 45 weeks to conclude a family case through the Courts, with many cases stretching far longer. ADR offers several advantages, including lower costs and quicker resolutions that benefit both parties.

ADR can also provide flexibility in scheduling and location, catering to the parties’ convenience. Due to the collaborative nature of ADR, ADR can be less hostile, help to maintain continued relationships, be less formal and therefore, reduce stress for all parties involved, including children who can sometimes be the most impacted by parental conflict.

Overall, ADR offers some of the most effective ways to ensure that all parties involved in family law proceedings can move forward toward a mutually agreeable outcome, finding a way to a new normal within family law proceedings.

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