Article written and provided by Lucy Greenwood, Partner at The International Family Law Group based in London.

As England’s family courts move towards greater openness in hearings about financial disputes in family cases, with the likelihood of fewer cases being held privately or Law Reports being anonymised, Lucy Greenwood, explores the benefits of dispute resolution.

The “secrecy” of family courts and their judgements have been the subject of public concern for some time.

Many family law professionals feel greater transparency in family law cases would enable the public to better understand family law and its application at Court and so enable the public to feel reassured that justice is being done in family courts.

Recently, many more family law judgements have been appearing in Law Reports.  However, until now, the general approach has been that such reports should be anonymised.

The debate about transparency has however recently taken a further twist following several reported decisions by a particular High Court Judge (The Honourable Mr Justice Mostyn). [1] [2] [3]

In his latest judgement on this issue, Mostyn J has reviewed the history of how family law evolved to perceive that parties in family proceedings should be afforded greater protection from publicity and identity than other types of court cases whether civil, corporate, or criminal. The historical review seeks to show that despite the perpetuation of this understanding amongst family law practitioners and Judges, the unique privacy believed to apply to family law cases might well have been built on a legal misnomer. This analysis has since been supported by Sir James Munby (The Former President of the Family Division in England and Wales).

The debate about transparency has therefore broadened to consider whether; even if the premise of privacy in most family hearings is built on a legal misnomer, should family cases nevertheless, be as open as other civil and criminal court hearings? If so, is it necessary to name the adult parties/spouses to a family case to understand the facts and the rationale behind a judgement?

Whilst the debate is interesting from a legal perspective, for couples facing separation it means there is an increasing risk that if they resolve matters through the family courts, their identities, the facts of their family breakdown and financial orders might well be heard in courts open to others, reported publicly in Law Reports, and possibly picked up by the press.

It is therefore increasingly important for couples to consider how they want to resolve their family law issues.

Dispute Resolution

Dispute resolution provides a very helpful, private alternative to court led proceedings for resolving family law matters and it is becoming increasingly popular with clients. Dispute resolution outside the court arena does however require the cooperation of both parties. It is also important to choose the right form of dispute resolution.

NB: Great care must also be taken in international cases not to suggest dispute resolution before a spouse’s favoured jurisdiction for resolving divorce and finances has been secured.

 

Forms of Dispute Resolution

These include:

Solicitor Negotiation

  • Most family law disputes in England are resolved by lawyers negotiating on behalf of their clients after financial disclosure. During the process a client receives ongoing advice about the merits of a settlement
  • Negotiations can be through correspondence, discussions, or meetings. This offers a relatively cost effective and successful approach for many.

Mediation

  • Couples meet alone with an independent neutral professional, often a family lawyer to assist them in reaching a negotiated agreement. In traditional forms of mediation, the mediator will not interfere with a couple’s discussions save to say if a court would not order the solution they are considering.

Directive mediation

  • The couple agree in advance that the mediator may give guidance and direction on what is likely to happen if a matter was to go to court for an outcome.
  • This form of mediation can be particularly useful where solicitors or legal advisors play a greater role in the mediation, including sometimes being present at mediation sessions.

Early neutral Evaluation

  • These are often referred to in financial matters as private financial dispute resolution hearings (pFDRs)
  • An independent adjudicator, often a senior solicitor, former family judge or barrister listens to the parties’ positions and provides a without prejudice indication of what they believe a judge at court would order if they were hearing the matter. This indication can be persuasive in narrowing issues between the parties and hence aid negotiation.
  • Early neutral evaluation requires the couple to reach an agreement. i.e., the adjudicator cannot determine what the financial outcome should be.
  • A pFDR takes on a similar format to the court’s financial dispute resolution hearing (FDR) which is the second hearing undertaken in court led financial remedy proceedings, once the parties have fully disclosed their financial positions.
  • The benefits of pFDRs over Court FDRs are numerous, but they enable an adjudicator to focus and dedicate an entire day on one matter (rather than judges at court who commonly have several FDRs listed on one day). A pFDR can also be undertaken in circumstances and surroundings which are far more conducive to settlement than court corridors. Many couples settle at or soon after an early neutral evaluation has been given.

Collaborative law

  • Both parties are represented by a trained collaborative lawyer. The case is dealt with mostly in four-way meetings between the couple and their respective lawyers. If required, other professionals such as accountants or valuers may also join the meetings to give neutral information
  • Each party signs a contract to provide full disclosure, negotiate in good faith and not to use the court process save by agreement. However, if either party issues court proceedings, the collaborative law process ends and both parties must change lawyers and neither collaborative lawyer will have any further involvement in the case. Some lawyers regard this as a disadvantage of collaborative law.

Arbitration

  • Arbitration was introduced to family law in 2012 and is rapidly gaining ground in popularity. This is a form of independent adjudication by a trained arbitrator (often a senior solicitor, retired Judge, or barrister). The parties agree beforehand to be bound by the decision of the arbitrator, so unlike other forms of dispute resolution, there is no requirement for agreement (save to opt for arbitration with a particular arbitrator).
  • It provides the opportunity to choose an arbitrator, agree timetables, and can be used to determine all issues in a case or just discrete points. It can also be used alongside a court led case, perhaps where a particular point of dispute is time sensitive, court time is scarce; where there are issues of privacy; or issues which would benefit from a specialist arbitrator (e.g: an arbitrator with a particular specialism in trusts, company law, pensions or cryptocurrency etc..).
  • It also provides continuity of arbitrator. In the court system many judges may hear different applications within one couple’s case.

[1]  BT v CU [2021] EWFC 87
[2]  A v M [2021] EWFC 89
[3]  Xanthopoulos v Rakshina [2022] EWFC 30

If you require further information or advice about anything mentioned in this article, iFLG will be able to assist www.iflg.uk.com

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