Family law

Government planning to keep more family disputes out of court

Posted by
James Harbottle
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Government planning to keep more family disputes out of court

Ian Walker - Solicitor/ Mediator/ Arbitrator/ M
Ian Walker – Solicitor/ Mediator/ Arbitrator/ Managing Director

The Lord Chancellor Dominic Raab has told the House of Commons Justice Committee that he wants to do more to reduce the number of family disputes going to court. 

Mr Raab said that most cases that did not involve safeguarding or domestic abuse issues should be resolved out of court. He also revealed that talks have begun with the senior judiciary about offering greater incentives to couples to settle dispute through alternative means, such as mediation and arbitration.

He did not indicate what these incentives might be, but he did say that he “would be in the market for something really quite drastic and bold in that area.”

So what might this mean for those involved in family disputes?


Day in court

It has always been the case that those involved in family disputes are entitled to have the dispute resolved by the court. Indeed, many want to have their ‘day in court’, where they can air their grievances before the judge.

But court is obviously expensive to the taxpayer, and recent governments have increasingly tried to save money by encouraging parties to settle their disputes out of court. What Mr Raab has said is just the latest example of this.

Meanwhile, there has been an increasingly widespread view that a courtroom is not necessarily the most appropriate place for a family dispute to be played out.

So the ‘day in court’ may in future be largely replaced by alternative methods of dispute resolution.


Alternative methods of family disputes resolution 

family disputes out of court

Apart from negotiation direct between the parties or their lawyers, there are three main alternative methods of resolving family disputes out of court: mediation, collaborative law and arbitration. These a generically referred to as ‘Alternate Dispute Resolution’, or ‘ADR’.

Mediation is a process whereby a trained mediator will help a divorcing or separating couple agree arrangements for children and/or a financial/property settlement. Entering into mediation is currently purely voluntary.

Collaborative law is a system whereby specially trained lawyers acting for each party endeavour to resolve cases via meetings.

And arbitration involves the parties agreeing to appoint a suitably qualified person (an “arbitrator”) to adjudicate the dispute, and make an award that will be binding upon the parties.



So what might be the incentives to encourage couples to resolve their disputes out of court?

An obvious idea might be to make ADR free, or cheaper than at present. For example, earlier this year the Government announced a scheme offering participants a financial contribution of up to £500 per family towards the total costs of their mediation. That scheme was very successful, and may well be repeated.

Another fairly obvious idea is to impose costs penalties (in future court proceedings) on those who refuse or fail to engage with ADR, without reasonable excuse. Such a move would, however, be quite controversial.

A further idea might be to streamline procedures for incorporating agreements reached out of court into court orders, so that the agreements are binding and enforceable. ADR is already usually much quicker than contested court proceedings, but this could further reduce the time it takes to conclude matters.


Compulsory mediation

Mr Raab’s words indicate that he is not considering making mediation compulsory, as has often been suggested in the past. However, heavily incentivising mediation might effectively amount to the same thing.

The argument against compulsory mediation has always been that many people simply do not wish to mediate, and you can’t force them to do so. That is true, but perhaps when they actually get to mediation some of the doubters may be prepared to engage.

Whatever, it will be interesting to see how Mr Raab’s ideas develop, and what effect they have on the number of family disputes going to court. In the end, however, some cases will always be incapable of resolution out of court, despite the best efforts of government, lawyers and others to resolve them by alternative means.


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