Delays still affecting court claims – what are the alternatives?
Most of us dread the thought of confrontation, and finding yourself in a civil or commercial dispute, for whatever reason, can be extremely stressful, time consuming and costly. Even seemingly small issues, if not nipped in the bud sooner rather than later, can have a way of escalating. Subsequently, this can worsen relationships of those in personal or commercial disputes or endanger the reputation or livelihoods of those involved in business related matters. Whilst it may seem like the only way forward is fighting it out in the courts, there are many alternatives to litigation that should be considered first. Furthermore, most courts will have expected parties to try and resolve matters via alternative methods before issuing a claim.
Recent figures released by the civil, family, and criminal courts have highlighted the increasing delays affecting cases being heard, with some taking more than a year to get to trial, so finding a different route to settle disputes outside of the courts, where appropriate, has never been more relevant.
We talk to Rachel Evans from our dispute resolution team regarding alternative dispute resolution and find a little bit more about her
What are the alternatives to litigation?
There are now various alternatives to litigation, like mediation and arbitration and for many years the UK Courts have been encouraging parties to settle disputes via way of Alternative Dispute Resolution (ADR). ADR includes various formats, which includes
Each should be considered very carefully; they could result in the dispute being resolved or determined sooner rather than later – and therefore usually at less cost than going to court. Be wary of declining an offer to mediate just for the sake of having your “day in court”. This approach can backfire.
How effective is Alternative Dispute Resolution?
There is no doubt, if conducted correctly and if both parties are willing to communicate and compromise, that using alternative dispute resolution techniques will save you time and money. In a survey conducted by the Centre for Effective Dispute Resolution (CEDR) earlier this year, it showed that mediation’s overall success rate is extremely high. Over 90% of all cases settled and over 70% on the first day. In the same survey it calculated businesses and individuals save £4.6bn annually by using mediation.
Is Mediation Compulsory?
Currently mediation is only compulsory in divorce proceedings, (unless you can prove exemption) and in most other civil and commercial disputes it is still a voluntary exercise. Although, it is strongly encouraged, and the courts will take dim view of parties who bring a claim to court without attempting ADR first and can even penalise those who refuse (or ignore) an offer to mediate.
A report by the Civil Justice Council was commissioned to consider the legality and desirability of making ADR compulsory, which could result in ADR playing an even more prominent role in future. Responding to the report on ‘compulsory ADR’, Master of the Rolls Sir Geoffrey Vos said that ‘ADR should no longer be viewed as “alternative” but as an integral part of the dispute resolution process. That process should focus on “resolution” rather than “dispute”.’
However, the report does not offer any proposal of timings as to when any changes might come into place, or how these would be incorporated into the dispute resolution process. Our team are keeping track of any changes and will provide updates as an when new information emerges.
How has the pandemic and social distancing restrictions affected mediation?
The traditional model of mediation involves both parties attending a meeting with a Mediator, at one location, albeit in different rooms. During lockdown and social distancing restrictions, this was not possible so many Mediators offered the option of remote online mediations, via methods such as Zoom or Skype. Whilst online meetings do have some disadvantages, largely this proved to have a positive outcome in most cases, with advantages that included a faster process, reduced costs, and ease of access.
Can court cases be conducted remotely?
In some cases, yes. Courts were required to adapt very quickly at the height of the pandemic and the implementation of modernised systems was fast-tracked to allow for Remote hearings and virtual Trials. Whilst in certain cases there will always be a necessity for in-person participation, it is likely that virtual mediations or court hearings will continue to grow in popularity and become a permanent fixture.
How can Eric Robinson help with Dispute Resolution?
Whilst we have focused on mediation in this article, there is more than one way of resolving a civil or commercial dispute and it needn’t involve the courtroom. At Eric Robinson Solicitors our expert lawyers will explain all the options to you and help you explore the best one for you or your business. We’re experienced negotiators and tacticians. Therefore, our team is well placed to represent both individual and commercial clients across a wide range of legal matters.
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Below we find out little more about Rachel Evans from our busy dispute resolution team.
Rachel Evans – Senior Associate
Rachel has over 25 years’ experience in dispute resolution and has been with Eric Robinson for over 15 years. She can advise on a wide range of civil and commercial disputes including contract and property disputes, company commercial disputes, maritime disputes, more recently specialising in disputes concerning Wills, trusts and estates, and disputed matters in the Court of Protection concerning the affairs of people who lack capacity.
What do you enjoy most about working with the Eric Robinson team?
R: It is a friendly and mutually supportive team who have a good depth and breadth of legal knowledge and experience. This makes it a good place to work and enables us as a team to deliver good solutions for our clients’ legal problems.
What made you choose a career in law?
R: Originally, I had intended to do a history degree but was persuaded to do a law degree instead. I then started my legal career in dispute resolution and never looked back. I found that I enjoyed the process of finding solutions to the clients’ legal problems.
What interests you most about specialising in dispute resolution?
R: I enjoy the challenge of building a persuasive legal case for the client. I also enjoy working with the client to problem solve and to try and facilitate an agreed settlement with the other party to the dispute.
What was your favourite subject at school?
R: Modern history.
Where is one of you favourite places to visit?
R: The Brecon Beacons and Pembrokeshire.
Financial Settlement Disputes – What is the process?
When going through divorce proceedings or ending a civil partnership, you and your ex-partner will need to agree on how you will separate your finances and property and make financial arrangements for children, which is called the financial settlement. A financial settlement will set out how you are going to divide all your current financial affairs, including savings, investments and pensions, and if there are going to be regular maintenance payments to help with children or living expenses. If you can agree on future financial obligations and how to split your money and property without the involvement of court hearings, whether directly, through lawyers or through a form of mediation, it will be best for all involved. Involving the courts in financial disputes will be more costly, lengthy and can further impact an already stressful situation.
Making a financial settlement legally binding
If you and your ex-partner can agree on the details of your financial settlement and how you will divide money and property, you will need to apply for a consent order to make it legally binding. But what happens if you are unable to agree?
What happens when you cannot agree on a financial settlement?
If communication breaks down, or you are unable to agree on everything, you can make a Financial Remedy Application, now known as a Financial Order (also known as the ‘contested’ route or an ‘ancillary relief order’). The Financial Remedy proceeding is the process that helps settle financial disputes between divorcing couples in court.
You and your former partner will need to provide all the evidence, including the details of the means and assets, and the court can decide upon an appropriate settlement.
Here are some of the steps involved in a financial remedy proceeding:
Before the Application
Prior to the actual application, the parties are encouraged to follow a pre-application protocol. This protocol outlines the ways in which the parties should provide the required information from and to each other before making the initial application. The idea behind the protocol is to ensure that the relevant efforts have been made to settle issues before taking them to court. In the instance of no possible progress being made, unless there is court intervention, the application can then be proceeded with.
Application to the court
Once you have made your application, the court will provide a timetable, which will include directives for all parties to follow, which includes:
There are three stages to the process:
- A date for when you and your former husband/wife will exchange financial statements (Form E).
- A date for when Questionnaires (questions you wish to ask the Other Side for further information, a Chronology (detailing the relevant dates in your Marriage) and the Statement of Issues are to be filed with the court. This usually needs to be 14 days before the First Appointment and is served upon your former husband/wife.
- The date of the First Appointment (known as the FDA).
- The first appointment – a short hearing with the Judge to discuss your application
- Financial dispute resolution (FDR) appointment – to help you agree without needing a final hearing (you might need more than one appointment)
- Final hearing – if you’re not able to agree, this is when a judge will decide how you must separate your finances
- First Directions Appointment
The courts will set a First Directions Appointment (FDA) before a District Judge following the application. The First Directions Appointment hearing is where the Judge can establish if full disclosure has been made or if further information is required from either party. The Judge will decide if all necessary information is available before negotiations can begin to attempt to settle the financial dispute between the divorcing couple. In certain cases, other Directions could be issued, including the valuation of assets or the obtainment of expert information.
If it is not possible to reach a settlement at the First Appointment, the District Judge will set a date for the Financial Dispute Resolution Hearing (FDR).
- Financial dispute resolution appointment
The Financial Dispute Resolution appointment takes place when the necessary documentation and evidence has been proven under the provision of the Judge. At this point, the parties then have the opportunity to negotiate. However, if the parties cannot reach a settlement, then either of their solicitors or barristers will explain their cases to the district judge.
The District Judge will indicate a predicted outcome if the case proceeds to a final hearing. This indication is not binding, they can either accept or disregard it, but it does tend to play a big part in aiding negotiations.
If you are able to reach an agreement at any stage of the process, prior to the Final Hearing date, a Consent Order can be drawn up to formally outline the terms and be filed with the court for approval.
- Final hearing
In the final hearing, the Judge listens to the evidence from both parties and makes the final decision on how the finances should be separated and if there will be any ongoing responsibility regarding financial support from one party to another. The decision will be incorporated into a court order, which will then be legally binding. The Judge will also decide if there should be a ‘Clean Break’ order, meaning that you and your former spouse would have no financial claim against the other. As with all proceedings during a divorce, children will be given main priority and be of top concern in any final decisions from the court.
If you are going through this process, it is vital you seek early expert advice to ensure you are properly represented, that you fully understand your legal rights and obligations and that any assets are settled fairly.
At Eric Robinson Solicitors, our divorce lawyers will help you negotiate a financial settlement with your spouse. Financial matters can be complex to resolve, but our team have years of experience in the divorce process- handling difficult settlements and securing results that protect your best interests. A family law solicitor can help reach a divorce settlement quickly and efficiently, avoiding potential court proceedings. However, if it is not possible to reach an agreement, we will represent you at every step of the way, and we will advise you on the relevant factors involved in your case and how the court will approach a settlement. We will also help you to understand what the possible outcomes could be so that you can make informed choices throughout the case.
We offer free initial consultations with our family law experts; if you are looking for some initial advice – book yours by completing the appointments form our family law financial agreements page.
For more information on Finances Following Divorce and Separation, you can download our advice guide here