Divorce - Let's do it differently
The world of family law is rapidly shifting: we have no-fault divorce being introduced next year, an overwhelmed court system and growing calls for...
Divorce - Let's do it differently
Alternative Dispute Resolution
We're highlighting there are more options for couples to resolve their issues on divorce.
The world of family law is rapidly shifting: we have no-fault divorce being introduced next year, an overwhelmed court system and growing calls for solutions that put modern life front and centre.
The pandemic has unfortunately created delays in the courts in a process that was already struggling with the amount of cases it had to deal with. It’s inevitable that alternative dispute resolution, or ADR, has grown in popularity as a result.
We want to raise awareness with the public, and other lawyers, that there’s more than one way to resolve a family matter – and it may work better than going through the courts.
Our report considers the findings from our survey of divorcees, plus our roundtable event with some of the most experienced voices in the family law sphere, to give you an insight into whether ADR is right for you or your client.
Most importantly, we’re showing there are more options for couples to amicably resolve their issues – and there’s an opportunity for positive change in the sector.
Director of Legal Services
1. Chairperson, Joshua Rozenberg, QC and Legal Commentator
2. Ros Bever, Director of Legal Services (Family)
3. Lord Nicholas Wilson, Former Judge of the Supreme Court
4. Janet Bazley, QC, Arbitrator, 1 GC
5. Gillian Bishop, Consultant, Collaborative Lawyer, FLiP
6. Nicholas Allen, QC, Arbitrator, 29 Bedford Row
We pick the key results from our survey.
Why ADR is Useful
There are many benefits to why couples choose to resolve issues out of court.
The tide is turning for the family law courts: while they groan under the pressure from more cases than they can handle, ADR is increasingly being pushed as a good alternative for couples to sort through their issues amicably.
The pandemic has been a catalyst - Irwin Mitchell’s Director of Family Legal Services, Ros Bever noted that in her experience, multiple lockdowns had sped up the use of ADR.
Even the most senior judge in England and Wales, Lord Burnett of Maldon, recently said that litigation shouldn’t be the first port of call when things go wrong, and that family disputes resolved amicably and quickly leave less damage in their wake.
But there’s a way to go in raising awareness of ADR: our survey found over a third (35%) of divorcees didn’t know about other ways to resolve children or divorce matters other than through the courts.
Our panel, chaired by Joshua Rozenberg, brought together some of family law’s most respected barristers, a former Supreme Court judge and experienced solicitors to talk about how ADR could become a key part of family law practice in the future.
There are multiple benefits to couples who choose ADR at the first instance instead of court. As Nicholas Allen QC pointed out about arbitration during the roundtable, “the arbitrator can exercise all the same powers that any family court judge can do, but fundamentally it’s quicker, it’s cheaper and it’s private”.
ADR can be particularly useful for children cases; as forms of ADR like mediation encourage a more collaborative approach, it can be less stressful for both the parents and children involved.
Of course, not all cases are suitable for ADR. Former Supreme Court judge Lord Wilson mentioned that court was “necessary in some cases” but that “judges and solicitors are encouraged by rule to talk about alternatives”.
So while ADR has some way to go with becoming the mainstream, the want – and need – is certainly growing.
Any arrangement for children, or any exercise of parental responsibility is ideal for arbitration.
What are the Types
We consider the different types of alternative dispute resolution.
What are the types of ADR?
When relationships break down, there are often disputes over money, property and children. It can be difficult for the two parties to agree; we’re shining a light on the other methods available to couples that can be more cost effective, quicker and less stressful than going to court.
Mediation is a way that couples can sit down to talk about an issue with a neutral third party, a trained mediator, to resolve issues. It’s typically used for arguments over children and finances, and the focus is on finding common ground.
Mediation is a good option for couples who want to settle their dispute in a more amicable way. Reaching an agreement outside of court can save on fees. However mediation isn’t binding, which can put some off of the process.
One of our panellists, Gillian Bishop of Family Law in Partnership, found that in her experience 85% of mediations are successful. She said “it’s a really good way for the couple to own the outcome of the agreement that they reach because in effect they’ve reached it themselves."
Arbitration is essentially a private judgment. Couples can choose the judge who has expertise in the matter at hand, the venue and even the setup of the room. If you think your case might be high profile for any reason, arbitration provides a higher level of privacy.
Most importantly, and unlike mediation, it results in a binding decision. However, as demonstrated in the Haley v Haley judgment last year, the decision can now be appealed.
Arbitration can be useful for time-sensitive cases, such as a child starting a new school, as well as for more complex situations with finances that need flexibility.
It’s of increasing importance and its attractiveness lies in the speed and cost-saving opportunity
Former Judge of the Supreme Court
Collaborative law differs from mediation in that each party has their own qualified solicitor with them in a series of discussions. Both parties and their lawyers sign a document at the beginning of the process committing to reaching an agreement outside of court; that agreement can then be approved by a judge.
This can be good for clients who can negotiate an agreement they’re happy with. However if an agreement isn’t reached, the parties have to instruct different lawyers to take their dispute to court.
The approach means less stress for clients and reaching a resolution they’re happy with.
An early neutral evaluation (ENE) is when a judge looks over the details of a case in a private hearing, and gives the two parties a likely idea of what the settlement might look like.
The evaluation can happen before or during litigation and helps to give context for the couple on the outcome. They can choose an experienced lawyer to evaluate their case; it means that they are guaranteed to get a neutral third party who has the expertise and time to look over their dispute.
ENE often brings a successful agreement and avoids any court delays. It can be useful for parties that have very opposing views on how the dispute should go, or who don’t want to commit to the cost of mediation.
In these hearings it’s an opportunity for clients to have a very experienced lawyer, usually a judge who’s sitting and hearing financial applications, to try and distil the issues.
Director of Legal Services, Family
ADR vs the Courts
Both the courts and ADR have their place but its important to know the difference.
Every couple and disagreement is different. Both the courts and ADR each have their place, but the latter is not being used to its full advantage.
In our survey, when divorcees were asked about what the most challenging part of the divorce was, 27% said cost was an issue while a quarter (26%) said length of proceedings had caused problems for them. These results are no surprise when we consider the strain on the family courts in recent years.
To support this, stats from the Institute of Family Law Arbitrators saw the number of family law arbitrations increase from 301 in January 2020, to 428 by June this year.
There’s been an increased appetite for using a private process because the courts have been pretty overwhelmed in recent years, with an increasing number of litigants in person.
Director of Legal Services, Family
The current divorce system means fault-based divorce petitions are needed, whereas ADR encourages a more collaborative and cordial approach for couples that aims to stay out of court.
Another benefit is the confidentiality ADR can give. Janet Bazley QC said “to be able to go to a private place and have full confidentiality is a real attraction”, especially for children cases. You don’t need to be rich or famous to have your case heard publicly in court, which can make the privacy of ADR proceedings more valuable.
One of the advantages of choosing your arbitrator should mean it’s less likely that you’re going to be unhappy with the award because you’ve chosen a specialist.
Our survey of divorcees found a quarter (25%) wished they’d chosen ADR, such as mediation or arbitration, instead of going through the courts.
That’s why it’s so important family law practitioners let clients know about the alternative methods available to them, and all of our panellists agreed this was paramount to making sure ADR becomes a standard practice.
Feeling more in control of the process
One of the main advantages to ADR that our panellists agreed on was the control it gives couples over the situation. Gillian Bishop said her preferred method is to ask clients how they imagine their case being resolved and very few pictured court proceedings.
The anecdotal evidence is in line with what our survey found. Of the respondents polled, over three-quarters 77% of the divorcees surveyed found their divorce proceedings stressful while two-thirds (66%) said they had lots or some arguments during their divorce.
Janet Bazley QC noted how customisable the process of arbitration can be, saying couples can even “input into how you’d like the chairs arranged, whether you want a formal court room style or whether you want something much more informal”. All of this can set your mind at ease, knowing you have a bespoke process to suit you.
A real benefit is choosing a judge that’s a specialist in the issue the couple are arguing over, which isn’t always guaranteed in the courts. This in turns makes the couple feel their matter has been fairly resolved, not only because they’ve picked the judge themselves but because the person in question is experienced.
At its core, ADR is more flexible and there are different levels of involvement couples can choose. For instance, clients in mediation can benefit from legal advice in the background; there’s also a hybrid model where lawyers may be in the room with the client to support them.
ADR can also be done online, which gives couples even more flexibility and control over the situation. Some find having the comfort of their own home around them makes the situation less intimidating and more comfortable, so there’s less room for disagreements.
You can identify an absolute expert in their field to hear the case and it is a quicker and often
more pleasant experience for clients with a clear indication being given and it is, in my
experience, equally as cost effective.
Director of Legal Services, Family
It’s clear that couples should be told about the full range of options available to them if it’s possible for their dispute to be resolved outside of court. Feeling in control of the situation will lead to better decision making and calmer discussions.
The new report from the Civil Justice Council determining mandatory ADR to be lawful, plus no-fault divorce being introduced next year, means separating couples can approach the process in a more positive way. We believe this could lead to ADR becoming the standard process ahead of court.
It must be a good thing that parties aren’t throwing mud at each other from the first time they go to see their solicitors.
Until the strain on the family courts is lessened, there’s also the likelihood that ADR will cost less from the outset. Reaching an agreement more quickly means less room for arguments and spiralling costs from court dates.
It’s telling that almost a third (31%) of divorcees in our survey felt the divorce might have cost less if they’d been friendlier, or at least more amicable, with their ex-partner; while over a third (37%) said the divorce was more expensive than they thought.
While the upfront cost might seem expensive, delays in the court process can cost much more.
Janet Bazley QC pointed out that forms of ADR like arbitration are a bespoke process, which is where the expense lies, but the emotional cost can be just as important as the financial commitment. When tensions are running high, the strain of court can add unnecessary pressure. It’s worth considering ADR as a way of prioritising a positive experience for you or your children.
As Lord Wilson pointed out during the roundtable discussion, despite the upfront cost of ADR, it can result in a much quicker final outcome - saving months or even years of time spent in court proceedings.
While not every couple will be able to avoid the courts, it’s worth considering other options to keep costs down both financially and emotionally.
You have to factor in the emotional and other costs of litigation when you’re looking at the financial cost as well.
Many will be wondering whether ADR is as effective as going to court, but the answer depends on the type of ADR used and looking at the wider effects it can have on a couple’s dispute.
The recent judgment in Haley v Haley divided family lawyers when the Court of Appeal overturned the High Court’s judgment, stating arbitration awards could be appealed if a second look was needed.
While Ros Bever agreed with Nicholas Allen QC that the result means couples may turn to arbitration more if they know they can appeal an arbitration award, Lord Wilson was clear on his opinion that the judgment undermined the finality of arbitration decisions.
Arbitration is now treated as being equivalent to the first-instance decision by a judge in the
family courts. If you think he or she got it wrong, then a higher court can overturn it.
Even if a process doesn’t give a binding decision, it doesn’t limit its effectiveness. Lord Wilson noted the advantage of mediation was the facilitation of the agreement itself and bringing new solutions couples may not have considered before; sometimes the role of a family lawyer is to facilitate discussions rather than gear up for battle.
Gillian Bishop said many of her clients simply wished to sit down with their expartner and try to work things out; similarly, our survey found almost four-tenths (39%) agreed that in hindsight, they wished they’d sought mediation during divorce proceedings.
So while types of ADR like mediation and collaborative law might not give binding decisions, sometimes a calm and rational discussion with the help of a
third party can be hugely valuable for couples to talk about issues over property,
money or children.
The Future of ADR
We consider the role of ADR has to
play in the future.
With increasing awareness of ADR, it seems inevitable more cases will begin with some form of it. Janet Bazley QC hopes there “will be increasingly a lesser role for the courts” and that ADR will increasingly be used, a sentiment the other panellists unanimously agreed on.
The courts themselves have been encouraging ADR as a way to relieve pressure on the system. The Ministry of Justice recently launched a trial for mediation vouchers to be used, which gives couples a £500 voucher to put towards mediation services. This move, along with no-fault divorce being introduced next year, marks a shift in the family law sector towards solutions-focused arrangements over finances and children, rather than the ‘blame game’ family law is known for.
I think we’ve reached a tipping point in respect of non-court dispute resolution. More and more members of the public are going to be saying to their solicitors, why do I have to go to court, why can’t I use one of the alternatives?
However, our panel noted that it’s also up to family lawyers to get acquainted with ADR. Our survey found just under four-tenths (41%) of respondents weren’t aware of non-court options, something the panel determined is up to the legal profession to signpost for clients.
If there’s to be a big step forward in resolving disputes quickly and cheaply for clients, more lawyers need to understand and train in ADR. As Ros Bever pointed out, the need for collaboration between family lawyers is needed now more than ever so that the best outcome can be reached for clients.
The challenge for lawyers in the future is to devise methods of resolution which work for our clients. We’re genuinely putting our clients front and centre in the work that we do, so we need to start continuing actually developing ways of resolution which suit them.”
A summary from our experts.
While it’s not always a substitute for court, it’s clear from our survey results and our expert roundtable discussion that ADR is not only on the increase but might be a better pathway for couples to resolving their disputes.
The benefits are clear: in the right case it can be cheaper, quicker and less stressful for all parties involved. At a time where family law stands on the precipice of change in order to keep up with our modern society, ADR can bridge the gap.
The only thing that really stands in the way is a lack of awareness and understanding – something we’re hoping to change in the coming years, and something that will come with continued support from the courts, judiciary and family lawyers.
Family law only stands to gain from using ADR, so we hope this report gives both clients and family lawyers the confidence to pursue more options.
We’re all in it together, which lets us work harder and quicker towards evolving so that our clients have a dignified exit from a relationship. We’re all trying to distil issues, navigate the way through for our clients and I think that we will see an acceleration of that collaboration.
Director of Legal Services, Family
Meet Our Experts
Meet the six family law experts who contributed to this report.
QC and legal commentator
Joshua Rozenberg QC (hon) is Britain's most experienced full-time legal commentator. He is the only journalist to have been appointed as Queen's Counsel honoris causa. All other honorary silks since the late 19th century have been practitioners or legal academics. He is an honorary Master of the Bench (bencher) of Gray's Inn and a non-executive board member of the Law Commission.
Director of Legal Services (Family)
Ros is National Head of Irwin Mitchell's Family Law team. She has extensive experience in high-net-worth and ultra-high-net-worth cases, which often involve complex international issues, high value trust structures, and pension arrangements. Although much of her work involves acting for high-net-worth individuals, she is passionate about fighting for a fair outcome for all clients.
Gillian is a consultant at Family Law in Partnership. She is a founding member of the firm, setting it up in 1995 to provide a distinctive client focused family law service. As an experienced family lawyer, Gillian wanted to create a firm for clients looking for a holistic approach to their divorce. Gillian’s aim is to keep the family unit as amicably cohesive as possible.
Lord Nicholas Wilson
Former Judge of the Supreme Court
Lord Wilson is a former Justice of the UK Supreme Court and joined Fountain Court as an arbitrator in 2020, having spent 27 years of his career on the Bench. He was called to the Bar in 1967, after gaining the highest honours as a law student at Oxford and was appointed Queen’s Counsel in 1987. In 1993, he became a judge of the Family Division of the High Court and in 2005 was appointed to the Court of Appeal, before being appointed Justice of the UK Supreme Court in 2011. Nicholas accepts appointments as arbitrator across a range of areas, both in the UK and overseas.
QC, Arbitrator, 1GC
Janet maintains a broad family law practice. Much of her work comprises private law disputes about children. Janet also receives instructions in complex care cases (generally involving medical issues), in family finance cases and in appellate matters. Much of Janet’s work has an international element. Janet is rated as a Leading Silk (Band 1) in both the Legal 500 and Chambers and Partners legal directories. Janet undertakes arbitrations (in both children and financial cases) in addition to other forms of dispute resolution and is a trainer on IFLA training courses for family law arbitrators. Janet sits part-time as a Judge, in both civil and family cases.
QC, Arbitrator, 29 Bedford Row
Nicholas specialises in high value matrimonial finance work. He is well known for his eye for detail, his knowledge of the law, and for his client care skills. He is Joint Head of Chambers (with Alexis Campbell QC) from January 2021. Nicholas is a qualified arbitrator (Finance) through the Institute of Family Law Arbitrators (IFLA) scheme. He has to date been appointed as arbitrator in 20 cases and has written 16 awards (three having settled and one is ongoing). He has also been retained on a further four cases which settled before his appointment was formalised. He is also regularly instructed to conduct Private FDR Appointments.
We want to ensure you and the clients are aware of all the options available to resolving divorce and family issues out of court. We can help you and your clients get through a relationship breakdown more quickly and with less stress than going through court, while saving costs too.
Our family law team includes specially-trained collaborative divorce lawyers, mediators and arbitrators based in major cities around the UK. We're experienced with family law cases of all sizes, including those involving international wealth and complex business interest.