The new Lord Chancellor and Justice Secretary Dominic Raab has told the House of Commons Justice Committee that he wants more family cases to be kept out of court.

In a committee meeting on the 30th of November Mr Raab was asked what his plan was to deal with the increasing number of private family law cases (that is, cases not involving social services) going through the courts.

Mr Raab said that broadly between 50% and 60% of these cases involve safeguarding (i.e. issues relating to the safety or welfare of the children concerned) or domestic abuse, and therefore need to be heard before a judge because of the issues at stake.

However, he said that the vast majority of the remainder of cases should not really go to court. He commented: “It should not be so easy just to say, “We’ll go to court.””

He went on to say that we ought to be much better at using alternative out-of-court methods of resolving family disputes, such as mediation and arbitration, and that we need to reconcile the incentives for using such methods and going to court. He said that he would “be in the market for something quite drastic and bold in that area.”

He also disclosed that he has “started to talk to the senior judiciary about this and work up a well thought-through approach.”

Mr Raab gave no indication quite what these incentives for resolving disputes out of court may be. They may, for example, involve financial assistance for out of court dispute resolution, such as the mediation voucher scheme that the government briefly ran earlier this year, offering a financial contribution of up to £500 towards the cost of mediation, in eligible cases.

It should be said, however, that there are already considerable incentives to resolve family disputes out of court. Contested court proceedings are stressful, time-consuming and expensive. Everyone involved in a family dispute should, if possible, make every reasonable effort to resolve the dispute out of court.

Family Law Café makes sure you choose the right options to get the outcome you want – very often that means avoiding the court route. Call us for a no obligation call and see what we can offer.

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How to cut through court delays

Last week a headline appeared in a national newspaper declaring: “Long court delays lead to boom in private divorces”. But what exactly is meant by the term ‘private divorce’?

Of course, there is no such thing as a ‘private divorce’. Divorces are dealt with by the court, and that cannot be circumvented. However, parts of the processes connected with divorce can be dealt with privately, by the agreement of the parties.

The primary reason for agreeing to deal with matters privately is that, as the newspaper headline indicated, they can often be dealt with much more quickly than they would be dealt with by the court. Often, court hearings are fixed some way into the future, and then it is not unusual to find that the judge is too busy to deal with the case on the day fixed for the hearing, leading to further delays.

To get around this, many litigants are agreeing to go private in order to progress matters more quickly. The most common examples of this relate to financial remedy proceedings connected to the divorce.

At an early stage in financial remedy proceedings a ‘Financial Dispute Resolution’ (‘FDR’) appointment takes place, at which the judge will try to help the parties settle the matter by agreement, failing which they will give directions as to how the case should proceed. For a fee the parties can appoint a specialist family lawyer to carry out the FDR privately, usually much more quickly than the court would deal with it.

Another example is arbitration, whereby a trained family arbitrator will make a final decision on a family dispute, which will be binding upon the parties, just the same as a court’s decision. Again, arbitration is likely to be much quicker than waiting for the court to deal with the matter. For more detail about the arbitration process, see this post.

If you would like more information about private FDRs and arbitration, Family Law Cafe can help. To book a free initial consultation with us click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

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Confused by the jargon? Family law, just like all other areas of law, is full of legal jargon, so here are some plain English definitions for some of the terms that you are likely to come across if you are involved in family court proceedings:

Arbitration – A process whereby the parties agree that their case will be decided by a trained arbitrator. For further details, see this post.

Ancillary Relief – An older term for Financial Remedies – see below.

Cafcass – The ‘Children and Family Court Advisory and Support Service’ – look after the interests of children involved in family court proceedings.

Child Arrangements Order – An order setting out arrangements relating to with whom a child is to live, spend time or otherwise have contact, and when a child is to live, spend time or otherwise have contact with any person. For further details, see this post.

Clean Break – A financial settlement that dismisses all financial claims (in particular for maintenance) by either spouse against the other, thus achieving a ‘clean break’ between the parties.

Consent Order – A court order made with the agreement of both parties. Usually refers to an order setting out an agreed financial settlement following divorce. Note that the order must still be approved by the court, which is not obliged to approve it merely because the parties agree.

Co-Respondent – The person named by the Petitioner as having committed adultery with the Respondent. The Co-Respondent is a party to the divorce proceedings.

Cross Petition – A document filed by a Respondent to a divorce who wishes to defend the divorce and petition themselves, alleging that the breakdown of the marriage was due to a different reason to that alleged by the Petitioner.

Decree Absolute – The order finalising the divorce.

Decree Nisi – The order stating that the Petitioner (or the Respondent, in the case of a divorce proceeding on a cross petition) is entitled to the divorce.

Desertion – Separation without consent or good reason, and where the deserting spouse has no intention of returning. Desertion is actually very rare.

Directions – Orders of the court, usually setting out how the case will proceed.

Financial Dispute Resolution Appointment – A hearing within an financial remedies application, at which the parties should use their best endeavours to settle the matter by agreement, with the help of the judge.

Financial Remedies – The financial settlement in connection with divorce proceedings.

Injunction – An order requiring a party to do, or to refrain from doing, certain acts. In family law, most commonly refers to orders restraining domestic violence or abuse.

Irretrievable Breakdown (of marriage) – The ground for divorce. Must be shown by proving adultery, unreasonable behaviour (see below), two years’ desertion (see above), two years’ separation with the other party’s consent, or five years’ separation. For further details, see this post.

MIAM – A ‘Mediation Information and Assessment Meeting’. A meeting at which it is assessed whether the case is suitable for mediation (see below). In most cases, it is necessary to attend a MIAM before making an application to the court.

Mediation – A process whereby a trained mediator will help couples agree arrangements for children and/or a financial settlement.

Non-Resident Parent (‘NRP’) – The parent with whom the child or children is/are not residing. A term usually used in connection with child support.

Parental Responsibility – For an explanation of what parental responsibility means, see this post, and for details of how it is acquired, see this post.

Parent With Care (‘PWC’) – The parent with whom the child or children is/are living. A term usually used in connection with child support.

Periodical payments – Another term for maintenance.

Pension Sharing Order – An order transferring all or part of one party’s pension to the other party. For further information, see this post.

Pension Attachment Order – An order stating that one party will receive part of the other party’s pension when the other party receives it. Again, for further information, see this post.

Petitioner – The party who issues the divorce proceedings.

Property Adjustment Order – An order adjusting the ownership of matrimonial property, for example increasing a party’s share in the matrimonial home from 50% to 75%.

Respondent – The party who did not issue the proceedings. Note that the Respondent to an application for financial remedies could also be the Petitioner in the divorce proceedings.

Unreasonable Behaviour – Behaviour by one party such that the other party cannot reasonably be expected to live with them. This is one of the five ways of proving that the marriage has irretrievably broken down, for the purpose of divorce proceedings. For further details, see this post.

Without Prejudice – Words used in an offer of settlement to ensure that the offer cannot be shown to the court if it is not accepted. If the offer is accepted the protection of ‘without prejudice’ is gone.

Of course, if you are in any doubt as to what a word or phrase means, then you should seek legal advice.

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Court proceedings, as we all know, can be both highly expensive and extremely slow, with the entire process being governed by court rules and the decisions of whatever judges are available to deal with the case. Surely there is a better way for couples who are unable to agree matters to resolve their disputes? Well, there is. Why not take back control of the process and go to arbitration?

As explained in this post, arbitration is one of the methods that couples can use to resolve family disputes out of court, but it differs from mediation and collaborative law in that it involves having the matter decided for them, rather than helping them to reach an agreement. This means that the couple are guaranteed to have the matter concluded. The decision of the arbitrator will be binding, and may be made into a court order (the arbitrator will reach their decision in accordance with the law of England and Wales).

Arbitration is now available to help separating couples resolve many types of family disputes, including financial remedy claims following divorce or civil partnership dissolution, disputes over arrangements for children and property disputes between unmarried couples.

Arbitration can only take place if both parties agree to it. If they do, they can appoint a trained family arbitrator to deal with the case, at a convenient time and venue. (An arbitrator will be appointed for them if they cannot agree who the arbitrator should be.)

The arbitrator will charge a fee for their services. The level of the fee will be agreed at the outset, either on an hourly basis, or as a fixed fee covering the whole case or fixed steps in the process. There may also be a fee for hiring the venue where the arbitration takes place. All fees are normally shared equally between the parties.

The arbitration process will vary from case to case but might involve an initial hearing at which the arbitrator will decide what needs to be done to get the case ready, followed by a final hearing, at which each party has an opportunity to put forward their case. After the final hearing the arbitrator will make their decision, which will be put in writing, together with the reasons for coming to the decision. The parties have the right to appeal the decision, if they think that there has been a legal error or serious irregularity. As mentioned above, the decision may be made into a court order, depending upon the type of matter in dispute – decisions relating to financial remedy claims, for example, should normally be made into court orders, but decisions relating to disputes over arrangements for children are less likely to need court orders.

Both parties can take independent legal advice before, during or after the arbitration process, at their own expense.

So why choose arbitration, rather than have your matter dealt with by the court? Well, there are a number of advantages to arbitration, including:

• It is likely to be a lot quicker than court proceedings – the parties can even agree the timetable, subject to the arbitrator’s availability.

• It is likely to cost less than court proceedings, because of the speed and flexibility of the process. For example, the parties can agree to concentrate just on the essential points to be decided.

• The parties can control the procedure, including such matters as whether it is dealt with by document only (rather than hearings) and even what parts of the dispute they want the arbitrator to decide.

• Lastly, arbitration is completely private and confidential – the media are not entitled to attend arbitration hearings.

If you if you would like to have your matter referred to arbitration, or if you would just like more information about arbitration, Family Law Cafe can help. You can call us on 020 3904 0506 or email us at info@flc.chcdigital.com.

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Most family disputes on divorce or relationship breakdown, such as disputes relating to finances or arrangements for children, are resolved out of court. In fact, contested court proceedings should be used only as a last resort, if you are unable to resolve the dispute by agreement.

Most agreements are reached either between the parties direct, or more commonly in negotiations between their lawyers.

If it is not possible to agree matters direct or between lawyers then there are three main other possibilities to consider before issuing court proceedings (or even after proceedings have begun). These ways of resolving disputes are often referred to as ‘Alternative Dispute Resolution’. They are:

⋅ Mediation – Whereby an independent trained mediator will help the parties try to reach an agreement. Mediation will normally involve several ‘round the table’ meetings between the couple and the mediator. If the parties are able to reach an agreement then the mediator will prepare a document setting out the terms of the agreement, and send copies to the parties. If, on the other hand, the mediator does not believe that there is any possibility of an agreement being reached, then they will bring the mediation to an end. Note that any agreement reached in mediation is not binding – the parties are entitled to take legal advice upon the terms of the agreement before it is finalised, for example by a court order. Note also that mediation is completely voluntary, and not all cases are suitable, for example, most cases where there has been domestic violence. There is a fee for mediation, although legal aid is available, subject to eligibility. Since April 2014 it has been compulsory to attend a Mediation Information and Assessment Meeting (‘MIAM’), at which it is assessed whether the case is suitable for mediation, before taking a family dispute to court.

⋅ Collaborative Law – Collaborative law requires each party to instruct a specialist collaborative family lawyer, i.e. a lawyer who has undergone special training to do collaborative work. Once this has been done, the parties and the lawyers sign an agreement to work together as a team to resolve issues without going to court. If either party should then start court proceedings, the collaborative process will end and the collaborative lawyers will cease to act for either party. Once the agreement has been signed, the parties and their lawyers will then attend four-way ‘face to face’ meetings, at which they will endeavour to reach a settlement. If a settlement can be reached, the lawyers will draw up an agreed document that is then submitted to the court, for approval.

⋅ Arbitration – Whereby the parties agree that their case will be decided by a trained arbitrator (the parties can also have their own legal advisers). The decision of the arbitrator will be legally binding, and may be made into a court order. The arbitrator will charge a fee, which will normally be shared between the parties. Advantages to arbitration over court proceedings include that the process is usually much quicker, that it is usually cheaper and that it is confidential.

If you would like any further information about Alternative Dispute Resolution Family Law Café can help. To contact us click the Contact link above and fill in the form, or call us on 020 3904 0506.