How to choose which form of ADR is best for divorcing clients

If your client is on good terms with their partner despite the breakdown of their marriage, it may be possible for them to reach an agreement directly between themselves. This will unquestionably be the cheapest option for your client as they will have avoided instructing a solicitor or other family practitioner to assist with the discussions and conduct the negotiations.

For cases involving complicated assets or a non-disclosing spouse, direct discussions would not be recommended without, at the very least, a solicitor advising in the background to help the client make informed decisions.

Private hearings

If your client is already engaged in court proceedings, they may have expressed dissatisfaction with the length of time between court dates and the lack of time afforded to their matter, given the current pressures the system is under.

The key stage in any formal proceedings is the financial dispute resolution appointment. This hearing is where a judge will give the parties a non-binding indication as to a likely outcome that will inform subsequent negotiations both on the day and moving forward.

It is becoming increasingly popular for couples to instruct a private tribunal – usually an experienced barrister – in this way to act in the judge’s capacity. The benefits are multiple: a dedicated tribunal with the whole day afforded to the case, with sufficient time to read in and absorb all the material, and heard in much more comfortable surroundings than that of the court, usually the barrister’s chambers.

This hearing is conducted on a without prejudice basis, so it does not bind any judge presiding over the matter at final hearing. Most cases usually settle at or shortly after this hearing, and so while there is an associated cost for the parties, it can often be an expedient way of resolving a matter or moving it swiftly towards a final hearing.

Arbitration

Arbitration is another form of tribunal that moves the entire proceedings, or a discrete issue, into the private sphere. An arbitrator – either an experienced barrister or retired judge – will be instructed, usually by agreement, and they will then determine the outcome.

Flexibility, speed and control are the principal benefits, and arbitration can address one point or the entire case.

As with a private FDR, the tribunal will have properly set aside time to read all of the case papers and their diary cleared to only deal with the matter before them. 

While the parties do have to pay for the additional cost of the arbitrator, as well as their own representation, the matter can be timetabled between the parties to suit them and move as fast as practicable.