ADR generally take place in a more informal, less confrontational atmosphere than a court hearing that is in itself of considerable benefit when the issues at hand arise from a family breakdown, be they financial in nature or in relation to a couple’s children. Other potential benefits include timing, both in terms of speed and scheduling, which is at the discretion of the parties rather than subject to a lengthy court backlog; the reduced cost of the process compared to a full-blown trial or series or hearings; the control that the parties can exercise in choosing their preferred method of ADR to best suit their dispute and situation and last, but certainly not least, the fact that ADR processes in the family context are by nature confidential.

ADR in the family proceedings: collaborative law

Each party must instruct a solicitor who is collaboratively trained before signing up to the “participation agreement”. In it, the parties agree in writing with their respective solicitors to work towards a settlement without going to court. Any financial or child-related issues are dealt with by way of negotiation. The court only becomes involved once an agreement has been reached, and then purely to convert that agreement into a binding order.

Should negotiations break down or the couple withdraw from the process for any other reason, new solicitors will have to be appointed to represent them if they decide to proceed to litigation. The participation agreement therefore acts as an incentive for both the couple and their solicitors to reach a negotiated agreement without the involvement of the court.

Another advantage of the collaborative law process is that it is a private process. Given that the rules of the family courts have recently changed to permit limited rights of access to accredited media, this confidentiality is increasingly desirable. The introduction of the Family Proceedings Rules in April 2009 brings the family courts into line with the rest of the UK courts by granting certain accredited journalists access unless there is a court order prohibiting it, or the hearing has a negotiation or conciliatory purpose.

This legal change does not do away with confidentiality in family proceedings completely as journalists will still not be allowed to disclose personal details of the parties and the case to the public, or have access to case papers .

Nonetheless it is apparent that a great number of people will not want information relating to their personal and financial affairs to be in circulation among the media, whether permission is granted to disclose them or not. There is some concern that, once information is known to journalists, it might be difficult in practice to prevent publication with only post-print sanctions being available, by which time reputational damage has already been done.

By contrast, a confidentiality obligation can be written into the participation agreement. All negotiations and discussions take place in face-to-face meetings with the couple and their respective lawyers present, thereby keeping correspondence to an absolute minimum. In collaborative law, the couple is involved in setting the agendas for each “four way” meeting which gives them control over a process, which is not dependent on a court timetable but only on the availability of everyone to fix regular appointments.

Whilst the court has no tools with which to address the emotional issues which can so often arise in a difficult divorce and indeed litigation itself tends to exacerbate matters, the collaborative law provides the couple with a flexible process designed to minimise hostility and focus as much as possible on the practical, and solutions. These solutions can also be bespoke for a specific situation, which can be of particular importance where the approach of a court would be likely to wreck sophisticated financial arrangements, perhaps with highly unfortunate tax consequences

ADR in the family proceedings: mediation law

This process helps separating couples discuss the issues arising from their separation – be they financial, child-related or other - in a constructive, regulated environment. The options discussed in the mediation sessions are confidential and as with the participation agreement in the collaborative process, the agreement to mediate can contain a confidentiality obligation.

Mediators are trained to help the couple reach agreement about how to make the best arrangements for the future, and the process entails the couple talking to each other face-to-face about the terms of their separation with the help of a mediator who will actively manage the negotiation process and help the couple set their own agenda and prioritise issues for discussion.

The mediator remains impartial throughout the process and is not permitted to give the couple legal advice nor make decisions for either of them. The mediator is however able to provide information and set out possible options, which many couples find very useful. Meditation often works best if each of the couple consults their own solicitor about the law as it affects them and the proposals being made so that they feel properly informed during the process, but this is not obligatory.

Not all mediators are lawyers - some have a therapeutic background, for example – and there are a range of mediators with different skills. While solicitor mediators are likely to be appropriate for dealing with financial issues, couples with issues relating to children might benefit from a different approach.

As with collaborative law, the mediation sessions are arranged to suit the convenience of the couple thereby helping them to remain in control of the process. At the end of the mediation, the mediator would draft a summary setting out any terms that the couple have found to be mutually acceptable and the couple can then take this document to their respective solicitors for them to convert to a legally binding agreement, or court order.