Civil Fraud Quarterly Round-Up: Q1 2021
Brad Pitt and Angelina Jolie's very public breakup has taken a different (and even more regrettable) turn in recent months with newspapers reporting on the apparently 'vitriolic' dispute over their children. The disagreement has allegedly arisen as Jolie is due to start filming Maleficent 2 in Europe while Pitt is committed to a new role in Los Angeles, making regular time with the children a near impossibility for the 'non-resident' parent. In addition, Jolie has claimed that Pitt has failed to provide ‘meaningful’ financial support. It has been suggested that mediation, one form of Alternative Dispute Resolution (ADR), was offered as a means to keep the matter out of court.
In this blog, we look at what the options for ADR are and why they may be the preferred choice when parents or ex-partners separate.
While the majority of us don't have to worry about fitting child arrangements around roles in Hollywood blockbusters, disagreements over where a child is to live and the time they spend with each parent are now more common than ever (according to Cafcass (the Children and Family Court Advisory and Support Service), the number of new private children cases each year has increased by 23% since 2014). However, disputes of this kind and others, such as how assets are split on divorce, don't always have to reach the courtroom.
Mediation is the process whereby parties, with the assistance of a neutral third party (the mediator), set their own agenda to identify and determine the issues in dispute and sit down together to try to resolve them. Parties are obliged to attend a meeting to hear about mediation as an option before commencing any court proceedings (otherwise referred to as a Mediation Information and Assessment Meeting (MIAM)). Mediation is not appropriate in every case, especially those involving domestic abuse, and so nobody can be forced to attend further mediation sessions with the other party if they don’t want to.
The mediation process allows parties to retain control over their decisions (a specific conclusion is not imposed on them), fostering greater creativity and flexibility for the family's individual circumstances. Parents are much more likely to stick to an agreement if they have reached it together rather than having it imposed on them by a court. They can talk openly about ideas, wants and intentions in a non-adversarial environment which is private and privileged (so anything said cannot later be used if the parties came to court). The process helps to minimise conflict between the parties which is especially important in children disputes as it can help to avoid children becoming exposed to the tension between their parents. Mediation can be arranged quickly and cost effectively, at a pace which is comfortable for both parties. If the parties can reach an agreement through mediation, this is often a much quicker and cheaper alternative to court proceedings.
Arbitration is effectively a private version of court proceedings; when parties are not able to reach an agreement between themselves, a qualified and experienced third party (the arbitrator, typically a senior barrister who specialises in family law) can be chosen to make a decision about the dispute which is final and binding. Stepping backwards from that, it is also possible to hold private dispute resolution hearings (officially termed Early Neutral Evaluation) in which a third party ('judge') is chosen to assess the merits of the case and explain what they think a court would decide. In contrast to arbitration, the 'judge's' decision is not final and binding but gives the parties an indication of the likely outcome at a final hearing in the hope of nudging them towards a settlement.
Being outside of the court process has obvious advantages; parties can choose their arbitrator and venue, select the issues to be determined, dictate the procedure and have complete control over the timetable. Where the court building can be stuffy, crowded and pervaded with tannoy interruptions, private hearing venues are comfortable and private with refreshments aplenty. Private hearings (and mediation) also help to keep disputes out of the public domain: for celebrities and high-profile individuals, there is the clear benefit of keeping their private lives private (especially to prevent any children caught in the middle from later happening upon press cuttings about their parents’ court battle). Arbitrators and private hearing 'judges' have the opportunity to fully read and consider all the evidence prior to the hearing, which court judges often do not, and they are usually able to provide a determination/indication within a small timeframe so the parties are not left in limbo for too long.
The collaborative process involves a series of meetings (commonly called ‘round table meetings’) where the parties sit down together with their respective lawyers to work towards a settlement. Everyone signs a participation agreement committing them all to resolve the dispute without involving the court. The process is often used in the negotiation of relationship agreements (pre- and postnuptial, cohabitation and reconciliation) but can also help to settle all kinds of family legal issues such as dealing with finances on divorce, property disputes between cohabitees and arrangements for children.
Sitting together around a table allows each party to discuss openly the matters that are important to them. Questions can be asked and answered immediately, avoiding lengthy correspondence between lawyers, and legal privilege is waived so everyone understands the advice being given and why. For these reasons, collaborative law strives to minimise conflict and promote a better ongoing relationship between parties than a traditional court process would, not to mention being much faster than court proceedings, more private and generally cheaper.
It is important for parties to understand that court is not the only option where legal disputes arise and it is often worth exploring the alternatives to see whether a resolution can be achieved.
If you are interested in finding out more about alternative dispute resolution or think it may be appropriate for your legal dispute, please see HERE for further information or contact a member of our family team at Kingsley Napley.
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