What is Alternative Dispute Resolution?
Alternative Dispute Resolution, or “ADR” for short, means achieving a final outcome in your case by means other than using a Judge to decide the issues for you and imposing her or his decision on you. Options include Family Arbitration and Private FDRs
Bear in mind that if you settle your case properly using any form of ADR, the outcome would be as binding as any court order, and turning it into a court order would be a formality.
Private Financial Dispute Resolution Appointment, or “Private FDR”
This is based on the procedure for Family Financial cases at court, in which virtually every case has Financial Dispute Resolution hearing (“FDR”) held by a judge. The judge will provide an ‘off the record’ assessment of your case and its possible outcome after hearing arguments from both sides, usually via their lawyers. You will then use the assessment to help negotiate a settlement, hopefully the same day. The lawyers will then prepare the paperwork for the court to conclude the case without the need for any further hearing. In the current crisis there might be some delay in getting a court-based FDR. Even if there is not, it will have to be heard remotely (currently, by telephone) in which you will be given a time limited slot in the court list which will include several similar cases being heard the same way. With a private FDR appointment, you will have a remote hearing via whatever system you agree to use (for example Zoom), as long as it is recordable, and the judge will only have your case to deal with, and for as long as you want her or him available. So, you can ask the judge for comment at any stage you choose, about any part of your case. Also, you select your own Judge, and the date when the appointment takes place.
A private FDR judge will be an experienced Barrister or Solicitor who specialises in family financial cases. He or she may be a Deputy District Judge or Recorder who hears this kind of case in the courts, or a Family Arbitrator. During the current crisis, the cost of a private FDR judge in the North East and Teesside would depend on the particular case, but would start at £500 plus VAT. Each party would pay half of the fee, payable in advance. FDRs happen once all the necessary evidence has been gathered and exchanged, normally following a First Directions Appointment at the court. A private FDR can be arranged at the earliest convenient date for you after that.
Family Arbitration
This is not to be confused with Mediation. In fact, it is the type of ADR that can be nearest to a contested hearing in court, up to an including a trial with evidence from witnesses, speeches by lawyers and a judgment (which is called a determination). It is appropriate where you would need a decision made for you by a judge but the court cannot provide a hearing date at a convenient time, or without considerable delay. Arbitration can take place at virtually any stage and at very short notice. This may be necessary where you need an urgent decision about short term maintenance, called Maintenance Pending Suit (or “MPS”). This might be achieved by both sides putting their arguments in writing to the Arbitrator who would provide a written determination within hours or receiving them. It is also suitable as an alternative to a final hearing, or trial, if a Financial Dispute Resolution Hearing, or private FDR, has failed to achieve a settlement. As with a private FDR, you choose your Arbitrator and the date when you want the Arbitration to happen. Additionally, though, you can also agree the procedure and the issues to be determined. After the Arbitrator has made the determination it is turned into a court order like any other.
Family Arbitrators are senior specialist Barristers and Solicitors who have undergone training and achieved accreditation by the Institute of Family Law Arbitrators (see IFLA.org.uk). Sometimes they are also part time Judges or Recorders. During the current crisis, the cost for an Arbitrator in the North East and Teesside would depend on the particular case, but would start at £500 plus VAT for an MPS Arbitration, or other matter that could be dealt with in a similar way, and £1,500 plus VAT per day for a final hearing, or trial type, Arbitration (inclusive or any preliminary ‘scoping’ hearing to agree issues, and final written Award). Each party would pay half of the fee, payable in advance. Some Arbitrators are also accredited to deal with disputes about arrangements concerning children of the family.
