Historical Background of Alternative Dispute Resolution in Family Cases
Alternative Dispute Resolution mechanisms emerged in England and Wales in the 1980s when conciliation in family disputes was adopted as opposed to the formal court process. In the 1990s a directive called Children Act: Practice Direction (Family Division: Conciliation Procedure) 18 October 1991 (Burger 1976). Mediation and Conciliation were highlighted as some of the ways family disputes could be resolved. Dispute resolution through the formal court process in Wales and England was been popular over time due to its certainty, predictability and precedents until the 1980s. (Burger 1976).Family disputes however are disputes of a special nature since in some cases children are involved and the rigid court remedies might not apply to the best interests of the children or the parties.
Alternative Dispute Resolution Options in Family Cases
The various alternative dispute resolution options in family law include mediation, arbitration, negotiation and an emerging area known as collaborative family law. Negotiation may involve the two parties to the family dispute or they may elect representatives to negotiate on their behalf. Negotiation happens where the parties or their representatives attempt to solve the dispute through talking and discussing various issues involved in the dispute. At the end of the negotiation process, the parties may agree to put the final agreement in writing (Nesic 2001).
Mediation involves the disputing parties in a family issue appointing a neutral party known as a mediator to help them in the conflict resolution process. The mediator normally helps the parties in a family dispute to talk to each other and discuss the issues throughout the dispute resolution process. The mediator normally allows the parties to maintain autonomy during the dispute resolution process and does not set any terms to be followed by the parties. A mediator does not have the power to force the parties to an agreement and is bound to keep all the matters discussed by the parties strictly confidential. The disputing parties during mediation therefore maintain confidentiality and control.
Arbitration is whereby the disputing parties appoint a neutral third party to assist in the resolution of the dispute acting as a judge during the process. Unlike mediation, the arbitrator has the powers to pronounce a decision which will be given to the disputing parties. The disputing parties have the power to decide whether the decision of the arbitrator will be legally binding or not. The parties also decide on the choice of the arbitrator before the dispute resolution process commences (Nesic 2001).
Finally, collaborative law, also known as collaborative practice is the process through which partners in a marriage undertake divorce or separation to get the best settlements for each of them while avoiding the uncertainty of the outcomes of the court process. The husband and wife in this case normally involve lawyers to help them settle their differences amicably and sign a participation agreement that is binding to both sides. The settlement at the end of the dispute resolution can be customized to meet the needs of the parties.
Merits of Using Alternative Dispute Resolution in Family Cases
The first advantage of using alternative dispute resolution mechanisms in family cases is the fact that unlike courts, they do not leave the disputing parties in conflict. Methods such as mediation and negotiation may assist parties in a marriage solve their dispute amicably while at the same time mend the strained nature of their relationship caused by the conflict. Courts assist parties in solving disputes and in some cases give orders for the division of the matrimonial property such as in divorce but they leave the parties always at conflict. Dispute resolution for family cases through the formal court process normally solve the legal dispute in a matter then leave the two parties estranged. Negotiation between the parties to the conflict in a family matter for instance may help the parties solve their dispute amicably and still maintain a good relationship with each other even after the dispute is solved (Gould et al 2010).
The use of alternative dispute resolution mechanisms in family disputes also affords the parties to the dispute flexibility during the dispute resolution process. Court proceedings have rigid timelines that might sometimes conflict with the schedules of the conflicting parties. Alternative Dispute resolution mechanisms however provide the parties with the flexibility to choose the timelines within which the dispute resolution will run as well as the procedural rules that will apply during the dispute resolution process. The resolution of family disputes through the normal court process restricts the parties to the rigidity and formality of procedure and timelines of the courts. The parties may also engage in the alternative dispute resolution process in locations of their convenience but the court process limits the parties only to the courtroom.
Alternative dispute resolution mechanisms are also relatively cheaper compared to the cost of litigation in family disputes in Wales and England. Methods such as negotiation would cost the disputing parties little or no costs while the costs for hiring a mediator are relatively lower compared to the costs of hiring attorneys for both parties to resolve the matter in court. In addition, most alternative dispute resolution options are efficient and expeditious compared to the courts which are barred with procedural rigidity (Gould et al 2010).
Finally, alternative dispute resolution mechanisms are confidential in nature compared to the formal court process. Family disputes such as divorce cases are sensitive in nature and may require confidentiality in the final findings of the case. Through alternative dispute resolution methods, only the parties are able to be privy to the information during and after the dispute resolution process (Gould et al 2010).
Demerits of Using Alternative Dispute Resolution in Family Cases
One of the shortcomings of alternative dispute resolution in family matters is that most of them lack the legal binding effect thus the final decisions might not be followed. Mediation or non-binding arbitration might not be effective due to the lack of a binding aspect of the final pronouncement. In addition, the efficacy and quality of alternative dispute resolution mechanisms which involve third parties are dependent on the level of experience and quality of the third party. An unqualified mediator or arbitrator would therefore lead to a poor decision being made unlike the court process in which this is unlikely (Mistelis 2003). Alternative dispute resolution mechanisms do not have precedents thus creating an uncertainty in the final outcome of the process unlike in the formal court process. Finally, alternative dispute resolution mechanisms may not always work in family disputes where one of the parties is abusive or violent. In such a case it would be best to use the formal court process.
Impact of Alternative Dispute Resolution and Recommendations
According to research (Mistelis 2003), by 2006, WESTLAW had 683 mediation cases and 661 mediation cases while LEXIS had 378 conciliation and 487 mediation cases. The research pointed to the successful nature of ADR since 90 percent of these cases did not go back to litigation. Research also indicates that in England and Wales, there has been a change in professional attitudes towards alternative dispute resolution mechanisms with most people ranking mediation organizations as quite effective ranking at 65 percent in terms of efficacy (Mistelis 2003).
Burger, W.E., 1976. Agenda for 2000 AD-Need for Systematic Anticipation. Judges J., 15, p.27.
Gould, N., King, C. and Britton, P., 2010. Mediating construction disputes: an evaluation of existing practice. Centre for Construction Law, Kings College, London Google Scholar.
Mistelis, L., 2003. ADR in England and Wales: a successful case of public private partnership. ADR Bulletin, 6(3), p.6.
Nesic, M., 2001. Mediation-On the rise in the United Kingdom. Bond L. Rev., 13, p.i.