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Take the heat out of
litigation with non-court
dispute resolution

Take the heat out of litigation with non-court dispute resolution

Published: 30th August 2019
Area: For the individual
Author(s): Kuldeep Chauhan ,

Not many people know about the options available when dealing with an ex-spouse and areas of disagreement where finances or children are concerned.

Although mediation is a mandatory requirement prior to Court proceedings being issued, not everyone sees the benefit of a third party helping them reach an agreement when the mediator cannot advise in the session. Instead, asking for the support of a lawyer, barrister or even a Judge for their opinion could be a more suitable option.

Non-court dispute resolution options include:

• Mediation

• Arbitration

• Mediation and arbitration (MED-ARB)

• A Financial Dispute Resolution Hearing

Alternative Dispute Resolution (ADR) can take many forms, including MED-ARB, which is a hybrid two stage process involving mediation and arbitration.

Stage 1 – The parties effectively agree to give the mediator power to convert automatically to being an arbitrator to make a legally binding award if the mediation fails to result in settlement.

Stage 2 – The arbitration phase of the process will then be legally binding making the arbitrator’s award enforceable, giving the parties certainty of outcome.

Not only that, people can also elect to engage in a collaborative law process. The collaborative process involves the instruction by each party of a collaborative lawyer, and the entering into of a Collaborative Participation Agreement.

There are no adversarial Court proceedings and the parties agree to sign a disqualification clause indicating that if they are unable to agree matters and issue proceedings, they will dispense with the services of the current lawyers and instruct new ones. In addition, the collaborative agreement confirms that the parties will negotiate in good faith and in a transparent way. The issues are then resolved in a face-to-face situation called a four-way meeting. Lawyers may also work with another professional who is collaboratively trained, for example, a neutral financial adviser.

Early Neutral Evaluation is a possible way forward whereby a neutral third party is invited to give an opinion on the merits of a case or particular aspects of a case. Experts can also be involved to consider technical and/or legal issues.

Lastly, in Financial Remedy Proceedings, parties can consider private Financial Dispute Resolution Hearings. This would involve appointing a Judge to hear the solicitor’s or barrister’s arguments in respect of financial matters and for an indication to be given as to how financial matters ought to be resolved. Generally, most indications at a Financial Dispute Resolution Hearing result in a Consent Order being agreed between the parties. This option can speed up the process and avoid long waits for Court dates.

Court is not always the option, so for those who want further information about the various ways in which to resolve disputes without the heat, please do contact the family team for further information.

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