Words: Alexandra Cohen, Advocate at Cohen Family Law
Photography: Danny Evans
In Jersey since the early 2000’s the Family Court has encouraged disputes between couples to be resolved through what was called ADR (Alternative Dispute Resolution) now more appropriately called NCDR (Non-Court Dispute Resolution).
There are various ways to engage in NCDR and this article seeks to explain these options and why they all offer advantages to going down the traditional court centred route. Indeed, it is becoming more and more the case that NCDR is actively encouraged by the Family Court, and it may well become the case that some form of dispute resolution will become compulsory soon. It is therefore essential for separated couples to understand the options and that all of these methods of resolution can be used in resolving both financial and children disputes.
SETTLING OUTSIDE OF COURT – NCDR
There is a broadly accepted principle that it is better to settle a dispute outside of court. NCDR can save time and costs and of course the couple are able to choose the type of NCDR that they wish to engage in as well as the person they want to be the ‘judge’ in their dispute. This means that the couple can be satisfied that their chosen judge will have time to read all the papers, consider all the issues and give a considered indication on the issues at stake. It is undoubtedly true that settlement rates are higher and the whole process is far less stressful for all involved and of course the couple both ultimately come to the settlement by consent both having a say in the outcome.
WHAT IS ON OFFER IN JERSEY?
1.
There is of course the traditional mediation route where the couples do not have their lawyer present during the process. This route is offered, for example, by Family Mediation Jersey or by Family Foundation. Traditional mediation can be highly successful particularly in resolving issues such as contact matters or child maintenance issues. It may well, however, not be as effective in dealing with more complicated disputes where matters of law may be involved, and legal advice and guidance is essential. Couples also sometimes feel that the pure mediation process can be highly stressful because they do not have their lawyer present, and the mediator may not be legally qualified.
2.
An early use of NCDR in Jersey was (and remains) the possibility of private mediation using a qualified mediator who is legally qualified and where couples have their own lawyers present to guide them through the process. The mediator will guide and will structure the discussion and identify the key issues and explore possible solutions that are tailored to the particular situation. However, the couple retain control and make their own decisions and the agreement if reached, is recorded in a legally binding agreement that will be presented to the court as a draft consent order. In many cases lawyer led mediation can be highly effective.
3.
However, there are many cases where the separating couples not only need advice from their own lawyers in order to reach an agreement but need an indication from a ‘judge’. The ideal forum in such cases is what is called Private FDR for finances and Private DRA for children disputes. This is where the couple choose and agree on their ‘judge’ (often an experienced barrister from England) who will offer a neutral and unbiased outcome if the dispute were to be decided by a judge in the Family Court. In practice the private FDR/DRA leads to very productive negotiations and there is an extremely high success rate for this process. Time is saved and of course costs are minimised and perhaps more importantly the couple avoid all the stresses of appearing before the court. Again, the agreement will be recorded in a legal binding agreement and presented to the court as a draft consent order.
Finally, it is imperative the options for settling the dispute are considered at the outset of a case and appropriate legal advice is given on the options available. If this is done and encouraged by lawyers, then emotional strain can be minimised during an already stressful time together with a saving of both time and costs and the court is avoided.
TAKE CONTROL OF YOUR OUTCOME.
Speak to Alexandra at Cohen Family Law about your Non-Court Dispute Resolution options and discover how you can save time, reduce stress, and reach an agreement that lasts.
01534 660560 / info@cohenfamilylaw.je
