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Is it possible to keep family matters out of court?
13 Jan 2022

The justice secretary Dominic Raab is looking into ‘drastic and bold’ ways to halve the number of family law cases reaching court, as the latest figures show the number of new cases is on the up. But can family matters really be resolved outside of court?

At the moment, 50-60% of the family law cases which are heard in court involve safeguarding and domestic abuse cases. The intention is for these to continue to be heard by a judge, to ensure family arrangements are well considered and in the best interests of all parties.

However, for the remainder of family cases where safeguarding and domestic abuse are not factors, the justice secretary would like to see more people using alternative dispute resolution (ADR) and mediation as their ‘go to’. This is an approach which the family team at FBC Manby Bowdler supports, not only to resolve financial matters but also to resolve disputes about childcare arrangements following a separation.

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Court proceedings are expensive and can take months to resolve. The latest Government statistics for April to June 2021 show that more than 66,000 new cases started in the family courts during Q2, which is up 14% on the same period in 2020. With more cases finding their way to court, delays are inevitable to what is already a lengthy process.

We understand that separating parents may not see eye-to-eye, but it is far better if they can work together through mediation or a solicitor’s round table meeting to agree on workable childcare arrangements, rather than resort to ‘see you in court’.

The key to making these out of court negotiations successful is ensuring each party seeks legal advice early on in the process and gets pragmatic advice. This approach encourages separated or divorcing parents to find the middle ground and to compromise for the benefit of their children, and is especially recommended for straightforward contact disputes.  

If required, parenting courses and family therapy can be included in the process to help the two parties co-parent and work together to raise their family.

Of course, if discussions reveal there are safeguarding issues to consider, such as domestic violence or alcohol and drug use, these more complex matters should be heard by the family court.

Alternative dispute resolution is also effective to resolve financial disputes arising from a divorce.  The Court can often take a number of months to list hearings in financial remedy proceedings, resulting in increased costs and delay for separating parties who would both benefit from an early resolution. 

Private Financial Dispute Resolution (FDR) hearings can be organised to speed up the process.  A privately organised hearing enables the parties to work together and focus upon reaching a settlement.  The team has recently settled a case at a private FDR hearing that would have taken months to be listed for a Court hearing in the usual way.

The future of family disputes?

If Dominic Raab pushes ahead with his intention to stop half of family law cases ending up in court, there may be a major shake-up on the cards for family court procedures to ensure ADR and mediation are more thoroughly explored in early negotiations. This could involve the use of incentives for those choosing to mediate or seek resolution out of court – or penalties for those who don’t.

While nothing is set in stone about future changes to the rules, it’s worth remembering that mediation is a better, more productive approach for most families, saving time, money and the heartache of a courtroom battle.

If you would like more advice on mediation or dispute resolution options for a family matter, contact Elizabeth Harris-Clark on  01952 915142 or email elizabeth.harris-clark@fbcmb.co.uk.

Meet Elizabeth Harris-Clark