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What are the alternatives to Court? Your options, pros and cons and more

View profile for Olivia Le Masurier
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What are the alternatives to Court? Your options, pros and cons and more

Many people think that their only option to resolving contentious issues is through Court proceedings, but that is not true. 

Non-Court alternatives are collectively known as Alternative Dispute Resolution (ADR), and there are multiple options available, such as mediation, arbitration and solicitor negotiations.

In this article, Olivia Le Masurier outlines the various forms of ADR, what they involve and the pros and cons; so you can make an informed decision.

Do you have to go to Court to solve a dispute?

The simple answer is no, you do not have to go to Court to resolve a dispute.

However, in some areas of law, such as family finances on divorce, you will need to have that agreement contained in an Order which has been approved by the Court for it to be legally binding and enforceable.

What is ADR in the UK?

Essentially, any form of discussion or negotiation outside of Court proceedings is considered ADR. 

Why is ADR better than going to Court?

ADR is generally considered to be quicker and cheaper than Court proceedings, and you are not bound by any particular rules or regulations, so you have more flexibility in the eventual agreement reached.

All forms of ADR are voluntary, so both you and the other person(s) need to agree the chosen process. However, the flip side means that neither of you can make the other engage or participate in that process.

Sometimes, even though both parties have agreed to an ADR process, one party does not engage, either fully or at all. This can result in significant delays and wasted costs.

If this happens, it is quite common for either party to make an application to Court so that there is a set timetable to address the issues. The Court has power to penalise a party for non-engagement, which could be considered contempt of Court, which is ultimately punishable by fine and/or imprisonment. 

This does not happen very often, the risk of such penalty being sufficient to ensure that parties fully engage in the process.

When is ADR suitable?

ADR is not always suitable. In some cases of domestic abuse, even with the support of professional representatives some people feel too vulnerable to engage with ADR, preferring the protections provided by Court proceedings instead.

If one party is a narcissist or has narcissistic tendencies, ADR can be difficult, if not impossible, because of the dominant, intractable stance likely to be faced. Location and distance can be a barrier to ADR, but the internet and video conferencing has largely resolved that. 

Whatever your circumstances, it is always worth discussing the options first, before deciding on any course of action or inaction.

What are the advantages of ADR?

Below, we’ve outlined the main types of ADR and looked at the pros and cons of each to help you weigh up your options.

What is a facilitated discussion?

Facilitated discussions are where you and the other party/parties sit together and talk things through, alongside a neutral third party such as a friend or family member, who would assist you in reaching an agreement.

Similarly, Kitchen Table conversations are where the parties negotiate direct, with the view of reaching an agreement, but without a third-party present.

What is the purpose of a facilitated discussion?

The idea is to reach a settlement directly, without involving solicitors or other professionals.  This is a great option if you are amicable and can have open, honest discussions with each other.

What is assisted negotiation?

Assisted Negotiation simply means that you have had the benefit of discussing matters with a lawyer before, during and/or after Kitchen Table, Facilitated Discussions or Mediation.

This means that you’ll be better placed to reach and enter into a legally binding agreement as you will have a better understanding of the legal requirements and your rights, your legal representative will be able to prepare the Court Order for you.

What are the pros and cons of assisted negotiation?

At Frettens, our bright team of lawyers would be happy to support you in assisted negotiation. However, we suggest that you finish this article first so you can weigh up your options. If you’re ready for advice now, you can reach us on 01202 499255.

What is mediation?

A mediator is an independent third party that helps opposing parties resolve conflicts.

A mediator does not provide legal advice; mediators are neutral, and their role is to enable negotiations by use of an interactive process and facilitate agreement between the parties.

What is the main purpose of mediation?

Put simply, mediation is intended to resolve conflicts.

Mediation is beneficial for family matters (such as divorce and child matters), as it provides a safe environment for discussions and is usually considered less stressful than Court.

What are the pros and cons of mediation?

For a full list of pros and cons, you can download our ADR crib sheet here.

What is hybrid mediation?

Hybrid mediation is a process where each party and their legal representatives are in separate rooms, and the mediator shuttles between you with a view to facilitating an agreement that day. 

What are the pros and cons of hybrid mediation?

What is collaborative law?

Collaborative law is a form of ADR specific to family law, so if that’s not what you’re looking for you can skip this section.

Collaborative law involves round-table meetings with the parties and their legal representatives. The parties can choose the timetable for dealing with the various aspects of the negotiations.

What are the pros and cons of collaborative law?

Read more on collaborative law on our dedicated page here.

What are round table meetings?

Round Table Meetings are similar to Collaborative Law, with the parties and their legal representatives being present, but without the restrictions imposed by the collaborative process.

The legal representatives will usually take the lead on negotiations, having previously ascertained their client’s wishes.  Negotiations are again undertaken with a view to reaching agreement that day.

What are the pros and cons of round table meetings?

What are arm’s length negotiations?

Arm’s Length Negotiations take place on your behalf between your legal representatives, which could include both written and/or spoken negotiations. The parties will always be consulted and advised throughout the process. 

What are the pros and cons of arm’s length negotiations?

What is arbitration?

In essence, arbitration is a private Court. The process requires the parties to submit their dispute to an arbitrator, who in turn will adjudicate the matter (much like a Court Judge) and provide the parties with a binding decision.

What are the pros and cons of arbitration?

Is ADR a better option than Court?

ADR can be a great option for a lot of people as it is generally quicker, cheaper and less confrontational than Court proceedings. There are multiple options available when looking at ADR and there is something for everyone.

However, all forms of ADR are voluntary, so the parties need to jointly agree the process, and for it to be successful, all parties need to fully engage in the process. 

If any one form of ADR is unsuccessful, the parties are open to try another form of ADR or issue Court proceedings, but that adds another layer of costs and can end up being a lengthy and expensive process. 

It is therefore imperative that all parties are willing to participate in ADR from the outset, otherwise you will be wasting precious time and money.

Why ADR option is best for me?

ADR can be tremendously beneficial, but it can also end up an expensive and lengthy process with no settled outcome.

It is therefore always advisable to discuss your situation and circumstances with a qualified lawyer before making any decisions as they will be able to guide you through the options and give an honest opinion as to what is likely to work for you in your particular situation.

For tailored advice on which form of ADR would work best for you, you can get in touch for a free initial chat using the information below.

Bright and experienced Family Solicitors

If you have any questions following this article, please don’t hesitate to get in touch.

We offer a free initial chat for all new clients, so you can speak to us to iron out the details and discuss your circumstances before committing to anything.

You can call us on 01202 499255 or fill out the form at the top of this page to find out more.

If you’re considering divorce, or in the process of it, you can download our free guide to a good divorce here.

The content of this article, blog or video is not intended as specific legal advice. For tailored assistance, please contact a member of our team.