ALTERNATIVE DISPUTE RESOLUTION (ADR)

What we do

Here at Broadway House we have a specialist team equipped to assist in the resolution of family disputes through the use of ADR. We are able to offer an array of services, including Arbitration, Private FDRs/DRAs and Early Neutral Evaluation. Our team comprises a dedicated group of practitioners who are able to work with you to assist in the resolution of your clients’ cases, whether that be financial remedy, cohabitation and trust disputes, or private children cases. Our ADR practitioners offer a range of expertise and span different levels of experience, including those who sit as family Recorders and Deputy District Judges. No case is too big or small to rule out ADR.

The current Covid-19 crisis has presented us all with challenges and changes to our day-to-day lives, and our working lives too. These changes affect us and also our clients.  Almost overnight the way in which we work changed and there is uncertainty about when and how it might go back to ‘normal’, or if it will return to a new kind of ‘normal’. Broadway House Chambers has embraced, and continues to embrace, these changing times. We are here for our clients, both new and old.

Rules & Guidance

First, the rules. The Family Procedure Rules, in particular rules 3.3 and 3.4 provides as follows:

3.3 The court’s duty to consider non-court dispute resolution

(1) The court must consider, at every stage in proceedings, whether non-court dispute resolution is appropriate.

3.4 When the court will adjourn proceedings or a hearing in proceedings

(1) If the court considers that non-court dispute resolution is appropriate, it may direct that the proceedings, or a hearing in the proceedings, be adjourned for such specified period as it considers appropriate –

(a) to enable the parties to obtain information and advice about, and consider using, non-court dispute resolution; and

(b) where the parties agree, to enable non-court dispute resolution to take place.

Now, the guidance…

We are all likely to be getting tired of ‘guidance’, after ‘guidance’ and more ‘guidance.’ It is, however, important to keep abreast of where we are. Here is a collection of some key guidance, as at 7 July 2020, in relation to ADR.

• On 17 March 2020 Mr Justice Mostyn, as the National Lead Judge of the Financial Remedies Court, issued guidance in relation to financial remedy cases. Within that guidance he said this in relation to FDRs: ‘Parties should be encouraged to have their FDRs done privately. Such private FDRs should routinely be done remotely.’
• Mostyn J’s guidance was given approval by the President of the Family Division on 19 March 2020.
• The lead judges for the Financial Remedies Court on this circuit are also making use of standard directions, which includes encouragement of the use of private FDRs, arbitration and other non-court based methods for dispute resolution where it is practical to do so.
• More standard directions in relation to financial remedy hearings in the Central Family Court, include the following:

11. It is the duty of the parties and of the court under Rules 3.3 and 3.4 to consider alternative means of resolving the dispute. The court will need to be satisfied that the parties have properly explored such means. These include but are NOT restricted to:

-Arbitration (Institute of Family Law Arbitrators or Forum of Family Arbitrators);

-Private FDRs where an experienced professional barrister, solicitor or retired judge will assist the parties from a neutral standpoint to reach a settlement;

-Mediation (https://www.gov.uk/government/publications/family-mediation)

12.Where the court is not satisfied that the parties have appropriately explored ADR, the hearing will be adjourned so that this may be explored.’

• The up to date publication of ‘Family Business Priorities previously agreed with the President of the Family Division’, as at 6 July 2020, identifies work which ‘must’ be done, work that ‘will’ be done, and work that the Court ‘will do its best to do.’ Financial remedy work (save for urgent applications) falls into the latter category, as does most private law children work (save for urgent applications and gatekeeping and allocation referrals).
• ‘The Road Ahead’ published by the President of the Family Division on 9 June 2020 says this: ‘In all Family cases, regard should always be had to alternative means of dispute resolution. At a time when it is clear that the court will struggle to cope with the volume of cases in a restricted working environment, it is all the more important that parties, legal advisers and the judiciary should have express regard to all forms of non-court dispute resolution (in accordance with rule 3.4 FPR 2010) including mediation, conciliation or arbitration. There will be many private law children cases or financial remedy case that may be resolved by one or other of these alternative means. All judges and practitioners are urged to familiarise themselves with these options and be prepared to identify those cases which may be suitable for one or other form of ADR.’