Family Law Without Court: A Practical Guide to Mediation, Arbitration and Collaborative Solutions

In this episode of My Family Pod, partners Nicola Bright and Jane Tenquist, Head of Family Law, take a candid look at the realities of the family court process and explore the more effective alternatives available to separating couples.

They discuss the increasing pressures on the court system, including delays, rising costs, last-minute cancellations, and the emotional toll on families. Crucially, they explain why court proceedings should often be viewed as a last resort rather than the default route.

The episode provides a practical and informative guide to alternative dispute resolution options, helping individuals understand how they can resolve matters more efficiently, cost-effectively, and constructively.

What We Cover

The challenges within the family court system

•  Lengthy delays and limited judicial availability 
•  Rising legal costs, often reaching significant sums 
•  Hearings being cancelled at short notice 
•  Inconsistent judicial experience in complex family matters 
•  The emotional strain of contested proceedings 

Key risks when handling divorce without legal support

•  Financial claims remaining open despite divorce 
•  The importance of securing a financial clean break order 
•  Ensuring agreements meet fairness criteria under the law 

Alternative dispute resolution options explained

Mediation

•  A cost-effective, structured process to resolve disputes 
•  Encourages communication and cooperation 
•  Options for shuttle mediation and child-inclusive mediation 

Private Financial Dispute Resolution (FDR)

•  A privately instructed judge provides an early case evaluation 
•  Greater flexibility, time, and control compared to court 
•  Higher likelihood of reaching a settlement sooner 

Arbitration

•  A binding decision made by a chosen expert 
•  Faster, confidential, and highly flexible 
•  Particularly useful where a definitive outcome is needed 

One Lawyer, Two Client Model (Resolution First)

•  A single solicitor acts for both parties 
•  Streamlined, cost-effective, and collaborative 
•  Suitable for couples with a strong foundation of trust and communication 

Collaborative Law

•  Four-way meetings involving both parties and their solicitors 
•  Focus on constructive, non-confrontational negotiation 
•  Access to additional professionals such as financial advisers where needed 

Useful links

• Jane Tenquist – Meet the team:  https://www.myerson.co.uk/people/jane-tenquist 
• Nichola Bright – Meet the team:  https://www.myerson.co.uk/about/meet-the-team/nichola-bright
• Myerson Solicitors – Family mediation services:  https://www.myerson.co.uk/services/family-law/mediation  

Transcript

00:00:13 Speaker 2: Hello, everyone. Welcome to My Family Pod, I'm Nichola Bright, one of the partners on the team, and I'm with Jane Tenquist today, partner and head of the family law team at Myerson. And today we're going to talk about essentially what is wrong with the court process in family law. Touching on the expense of it, the time delay, cases being removed from the list at the last minute. Um, deputy district judges perhaps not having as much experience in family law as other judges. Judicial times and judicial availability for hearings and the stress of court proceedings. And off the back of that, what else can be done? What are the alternative routes for settlement? And we're going to touch on private mediation, collaborative law, arbitration, and also the one lawyer, two client model.

00:01:10 Speaker 1: Jane and I are going to discuss some alternative ways for separating couples to try and resolve disputes. Jane, what are the options that are available?

00:01:20 Speaker 2: Quite a cost effective option is for people to issue divorce proceedings themselves via the government divorce portal, rather than instructing a solicitor to do that. so it's, it's a really easy portal to use and it's very, very quick in terms of, filling in the necessary information to issue court proceedings. however, the danger of the new no fault divorce system is that people aren't sorting out their financial orders at the same time as they divorce and divorce itself doesn't terminate financial obligations towards each other. So potentially you could end up in a situation where people have probably got divorced, but they haven't sorted out their finances. And many years after the termination of the marriage, either party could make a claim against pensions or for, a property sale and a lump sum in respect of property. And that comes as a huge shock. so it's really important that if people are going to use the divorce portal themselves and save some money that they also consider very carefully, the need for getting a financial clean break order. Another danger of people doing it themselves is that, they're coming to financial arrangements, which will would not be approved by the court, because they're not fair and reasonable, and meet the criteria of fairness set down by section twenty five of the Matrimonial Causes Act. So it's really important that people get some advice about a legal advice about whether their financial order meets the criteria of fairness that would be approved by by the court. And there are various ways that you can get cost effective advice for that. so for example, you can instruct a solicitor to give you some fixed fee advice or draft a consent application for approval, by the other party solicitor, you can, get some fixed fee advice in relation to the financial outcome that you'd hope to achieve on a divorce, and whether that's fair and reasonable. you can engage in mediation, which is a really cost effective solution because it tends to be fixed fee and a lot quicker than trying to resolve it via solicitors. Mediation is not marriage guidance. It is a process whereby parties can attend either in person, face to face or on remotely, either by teams or Zoom to resolve disputes in relation to either finances or children upon separation. And mediation tends to be, um, really helpful in promoting conversations and cooperation between parties. It, it's really helpful for that. Sometimes people are a little bit worried about meeting their partner face to face, and in those circumstances, the mediation might start off as a shuttle mediation, where partners are in separate rooms, either virtually or in physically separate rooms, and the mediator will shuttle between them to facilitate communication. There may be, all sorts of issues to discuss, not just finances in mediation. You might be able to discuss, disputes in relation to children and in some cases you can engage the services of a child inclusive mediator, where, where the children who are maybe age ten upwards can be consulted as to their views about their parental separation. and maybe younger than ten if they've got older siblings, it just depends on, on the maturity of the child really, and the family setup. However, it's really important in a child inclusive mediation, the child is made aware that their views are not determinative of the outcome and that they don't feel the heavy weight of responsibility, that they're making decisions about who they should live with, because that's a terrible position to put a child into. so mediation is a fixed fee arrangement. We at Myerson offer mediation for couples, it's probably one of the most cost effective and quickest solution, to go ahead with, there are also other options that I'm going to talk to with Nicola during the course of this podcast, such as, having a early neutral evaluation or private FDR using the arbitration process or the collaborative process, or using a process known as resolution first one lawyer, two client model. So Nicola, can you explain about the private FDR process?

00:06:40 Speaker 1: Private FDRs are private financial dispute resolution hearings. So if you were in court proceedings, in a normal court, in a normal setting where you'd issued court proceedings and you hadn't considered these alternative dispute resolution methods, you would have an FDR in that process, and you would be allocated, usually a district judge who would have two hours on the day to read your file and make a recommendation as to what they think should happen if the matter was to be determined as a final hearing, and that recommendation or indication really focuses the party's minds in coming to an agreement, hopefully at the FDR, which means they avoid having to go to a final trial where they would give evidence typically, and it would take one, two or three days or even longer in some cases. And it's very expensive. So the FDR is really a conciliatory exercise with the benefit of a judge. Now, the disadvantages of using the court system is simply time because they only have two hours. They may have two other FDRs on that day to deal with, and you may not have an experienced financial remedies judge on the day. It's pot luck as to who you'll end up with. There's also problems with court delays with waiting for the figures, and there are issues with hearings unfortunately being cancelled last minute due to judicial judicial availability. So a private FDR really means that you can take control of that process, and you hire your own judge for the whole day, and you have a dedicated family judge who you can pick yourselves and agree on. And typically it would be a very senior barrister or KC, who is qualified to carry out these FDRs or early neutral evaluations and who charge a fee which is typically jointly paid for. And you could be looking at anything between three thousand and six thousand pounds to hire a judge for the day. But you could spend more money in waiting for a hearing at court when you're corresponding with the other side. So I think they're really a good way to spend your money. If you can have a hearing sooner than you would have to wait for a court hearing. And also you've got the benefit of the whole day, which means you've got more chance at settlement because you've got that judge for yourselves for the day who you can go in and out, in and out of the room with. And typically these hearings will take place either in barristers chambers or in solicitors offices. And we hold we hold FDRs at our offices regularly because we have a number of meeting rooms and a boardroom which acts as a courtroom, and we've had brilliant feedback from clients and counsel who have acted on those cases. And at the as part of the process in that in that hearing or shortly after you've been in to see the judge, you'll have a written indication from them, which is also helpful to refer back to. If you don't settle on the day, you might settle soon after. And I've had that happen on a number of occasions where you've had a day in court, and then you'll settle a few weeks after, which probably wouldn't have happened if you'd gone to court, because you wouldn't have that written indication to refer back to.

00:09:56 Speaker 2: I've also had that experience of having written indications, which are really useful if the financial dispute resolution appointment doesn't resolve in a in a agreement. And you can use that as an indication. As a format for for following negotiations and in fact, then we were able to settle it shortly afterwards. So, Nichola, what happens if you if you reach an agreement at a private FDR.

00:10:23 Speaker 1: So on the day, in an ideal world, you'd have time on the day for your respective barristers to join together and draft up a consent order, which can then be sent to the court for approval. It doesn't need approval on the day by the judge that you've hired, but it would be nice to have their eye over it, to cast their eye over it, to see if everything's above board. But ultimately, it still needs to be sent to the court for approval. Um, and that will then once approved, end that court process and you would no longer be in court proceedings. That order then would be implemented. So for example, if it provided for transfer of property or transfer of shares, those orders could then be implemented, which may take weeks or months. But that's your sort of end point in terms of the legal aspects. You then need to implement your order thereafter. And if you don't reach an agreement, you're already. And if you're already in court proceedings anyway, you'll just ask the court for a directions hearing or it'll be listed to a final hearing. So again, your, your solicitors and your counsel will work together to draft up a jointly agreed order for directions. And typically if it's going to final hearing, that will include things like, um, updating disclosure, any expert evidence that's required, who's going to need to be attending court? Is it going to be experts? Do you need a timetable for witnesses, that kind of thing. Um, because the FDR evaluator doesn't have the power to make any legally binding decisions as to the progress of your case, if you don't agree anything at that private hearing, you still need to submit an order to the court for directions for further, further conduct of your case. Otherwise it will just sit there and you'll be waiting. So you do need to do that straight after. And there's another thing that we have done in our office, haven't we Jane. Arbitration. Um, which is similar but slightly different.

00:12:19 Speaker 2: In fact, arbitrations are a bit like a private FDR in that you can pay for a judge for the day. and the judge tends to be a either either a retired judge or silk senior barrister or a, experienced solicitor who maybe sits as a deputy district judge. I think it's really important that you choose an arbitrator who has experience of being a judge in court. and there are, a list of arbitrators available at the Institute of Family Law Arbitrators. So the benefits of arbitration is that it's very private. and they, it tends to be much, much quicker than using the court process and, um, and therefore less expensive. Um, because within the court process, even if I were to issue court proceedings today, it's very unlikely that if the case was going to final hearing that it's going to be over with in less than twelve to eighteen months, whereas with an arbitrator, once financial disclosure has been completed, you can get an arbitration sorted out within within a matter of weeks. it's really, really handy and helpful for both parties in driving it through to very speedy, cost effective Conclusion. As I've said, it's very private and confidential. So it's really helpful for people. For very high profile clients who, who want to keep their, arrangements, confidential. and there's arbitrations are suitable for financial cases and also children cases provided that there are no safeguarding issues. And, so really, really helpful for that. And, we've also used arbitrations, not just here at Myerson in our FDR suite where we've got basically a courtroom set up there, but we've also used arbitrations in writing on a specific issue and it could be anything. For example, you agreed all finances, but you can't agree on the pension sharing aspect. or what's happening with some company shares, what should happen in relation to that? So you can have an arbitration in writing, and those are on a specific issue. And that resolves all the issues that you have. that's really useful. I've also found it useful in relation to when parties choose to try and resolve matters cost effectively to either, start off with a private FDR and if that doesn't materialize into a concluded agreement on the day that both parties agree then to engage in arbitration on the basis. You could probably have an arbitration within the month. Really. you're looking at a, you know, having then to go back into the court process after a failed private FDR and um, and then, and then having to wait for simply months, especially if it's listed for several days for a final hearing. The disadvantage about private FDR, although I love them and I've had very positive outcomes from them, is that the judge can't give a binding indication on the day it all all the judge can do, and it's very, very persuasive in most cases is to say what what I think would be a fair outcome. But it can't. You know, if one of the parties doesn't like that outcome, they could just walk away from the negotiating table, private. FDR and then you'd have to be back in the court process unless you have an arbitration. But the beauty about arbitrations is that the arbitrator can impose a decision and you can't appeal that decision unless there's something, there's an error in law rather than an a court would order as a judge would order in court. So I think arbitrations are really, really useful.

00:16:37 Speaker 1: I do. And I think we do them here and we promote them. But when the the general consensus is that they're underused and you don't see many people arbitrating. And I think I'm and I'm not sure why, whether it's the cost of the judge, but I think overall, you're going to save money and have a decision made within months and not years.

00:17:01 Speaker 2: Yes. And actually the cost of a senior silk, for example, a senior barrister is really very cost effective, akin to the cost of a private FDR judge. However, if you're having arbitrations over several days, I suppose then then the costs would mount up. But it's still, if you're thinking about having to wait for the uncertainty of waiting for the court to determine the case, and you may not get another listing for six months. You may prefer to have it sorted a lot sooner with arbitration.

00:17:35 Speaker 1: And if it's highly contentious, like say it's a children matter and there's correspondence flying around and there's another six month wait on a final hearing. You could easily spend the money you would spend on an arbitrator on fighting.

00:17:47 Speaker 2: Yes.

00:17:48 Speaker 1: Easily in six months because people will be firing letters off. And you know, you know, meeting with the client, if there's ongoing issues that can't be resolved until you have a decision in my head, makes much more sense to not wait and.

00:18:03 Speaker 2: No, no, I.

00:18:04 Speaker 1: Agree. Yeah.

00:18:05 Speaker 2: so Nicola, um, another option that, um, that people might use in order to keep costs down is, is to jointly instruct one solicitor to draft a agreed financial application or an agreed arrangements in respect of children. Mhm. So can you explain the benefits of this model, which is formally known as the resolution first model?

00:18:37 Speaker 1: Mhm. Well, firstly, because you are agreed and you're instructing one lawyer, it's much quicker than you both having separate lawyers where you're corresponding between each other to try and resolve wording, perhaps of a consent order or a child arrangements order. So it's more cost effective and it's much quicker to have one lawyer working for both of you. It's only the right type of couple that would want to do this. And they really need to be already on a good basis of communication. And the actual process itself will then promote the communication and cooperation cooperation. Because you're working on the same team, you have the same lawyer. And that one lawyer can then draft all of the, all of the documents that are required to send to court. So in, in all in all, that process could take, um, as long as the divorce process typically, so let's say within four to six months, you could have an agreed financial consent order, which is approved by a court. Once you've got your divorce conditional order granted, you can send in your agreed financial order. And that is much quicker than having two lawyers where you're waiting on the other lawyer to provide information to fill documents in or signing something. And it just it speeds all of that up, you know, having to, um, communicate with anyone else other than your two clients. There's also another process, isn't there, that we we use here because we have a collaborative lawyer. And that's the collaborative law process, which is different from what we've spoken about. Some people think it's the same as mediation, but it isn't. It's very different from mediation. Yeah. So what are the benefits of that process?

00:20:23 Speaker 2: Well, the benefits of the collaborative process is it's you feel very supported within that process because it's a process whereby, um, parties agree to negotiate with each other as constructively as possible, mainly in form of four way meetings between you and your former partner and their respective solicitors. So at every meeting you'll have for four people and, um, commit to, to participating in mediation and in the collaborative process in a non-confrontational way, and you'll sign a participation agreement at the beginning at which you agree to keep the matter out of court and to resolve all issues by way of these four way meetings. Um, and so the benefit for that for the client is that instead of, for example, compared to mediation, where the client goes to mediation by themselves and sees the mediator at each meeting, they have on hand their own solicitor who can advise them as to the best outcome and the options available for them. And so, so progress can be made very, very quickly just by being able to communicate because their lawyer is right there. The collaborative process can also, um, if there's issues in relation to pension sharing or outcomes of what should happen to us. For example, if a wife is getting a pension share, how how is she going to invest it? Or if she needs some spousal maintenance in order to support herself, either on an interim short term basis or a longer term basis? How much will that be? And there may be some independent financial advisors, brought in to do cash flow projections to find out how much the wife might, might need on a, on a maintenance basis or by way of capitalized maintenance to support her and meet her needs. Um, and so all these sort of other professionals might join the meeting to assist the couple in working with each other to explore the best outcome for them. And it tends to work when people have either been separated for some time and some water has passed under the bridge, or whether they are really. Know a lot about their own finances to be able to engage on an equal basis with their ex-partner. It works really, really well. in relation to that. and the roundtable meetings are without prejudice basis so that conversations can be private and confidential and not referred to outside of the, of that process, so that each party has a confidence to engage really proactively in trying to negotiate and put forward our options and brainstorming what's best for the family. however, if you're not able to reach agreement after going to several roundtable meetings, then, um, your lawyer has to to stand down and you'll need to issue either court proceedings or, um, have a private FDR or have an arbitration in order to resolve matters. And the reason for that is that it concentrates the mind. All parties are concentrated on trying to reach a really constructive solution.

00:24:13 Speaker 1: Without having to change lawyers.

00:24:14 Speaker 2: Without having to change lawyers.

00:24:16 Speaker 1: Yeah.

00:24:17 Speaker 2: And so.

00:24:18 Speaker 1: Um, hence the participation agreement. Yes. Yeah. Yeah, it makes sense. I think it focuses their minds more than. Yeah, it's, it's, it's a big step then, isn't it? If they were to disengage from the process, they've got to find another lawyer and then they've potentially got to issue proceedings or have an arbitration or in private. FDR, but with someone that doesn't know them and they've already spent lots of money in this process.

00:24:43 Speaker 2: so Nichola, if you were getting divorced, What would be the most cost effective and quickest solution? Which which ones might you choose?

00:24:52 Speaker 1: Well, I think from obviously working in this area and seeing what benefits people emotionally and also financially, I would say mediation is always a good first step. And lots of people go to mediation and come out of there with an agreement. It's the cheapest out of the options we've spoken about today, and it's really cost effective. It's often done on fixed fees for lengthy meetings up to ninety minutes, and some people only need two or three sessions to reach an agreement on their finances after their disclosure has been exchanged. So this this is definitely the the first option that everyone should consider. Um, the next one I would look at, which is really taking off at the moment is the resolution first model with the one lawyer to two clients. again. It'll be very quick compared to court proceedings and cost effective for both people, both parties. And I then think collaborative law would be a next, a good next step. Again, keeping in with that sort of resolution mind and employing a qualified collaborative lawyer who's also a member of resolution to help you. And you know that the opposing party solicitor will be the same. and that will likely know each other. And that sometimes helps because there's a relationship there between lawyers and that can aid a settlement between parties.

00:26:22 Speaker 2: And I think you're working towards the same goal, which is resolving matters rather than trying to create disputes.

00:26:29 Speaker 1: Yes.

00:26:29 Speaker 2: I think that's really important.

00:26:31 Speaker 1: Totally. Because if you've got no reason to create a dispute, because if you did that, you'd lose that you'd lose that client and you lose that client's trust. So everyone's focused on the same goal. And then in cases where those models aren't appropriate, perhaps you've got issues with non-disclosure or very complex financial arrangements. You may look at more court style solutions like the private FDRs or the early neutral evaluations where you hire a judge. And then obviously the arbitration process is a step up from that where you can end up with a with an order, an arbitration award, which is enforceable and legally binding. And then finally, the last resort should always be the court process. Not that, you know, we have a great judiciary and judicial system here. It is just a very busy system. And you are waiting and the judges have not just your case. In one day, you may have a judge that doesn't have much family finance experience, and you have a judge who's got to list as long as his or her arm. And you also. I mean, I had recently a cancellation of a hearing the day before. You know, five day hearing listed, canceled the day before. And that happens a lot. So it's always that's the biggest worry is that cancellations can ruin all the progress you've made. Can cost the parties lots of money and wasted barrister's fees. It's the most risky option out of what we've spoken about today.

00:28:02 Speaker 2: It's not unusual for cases to be sort of six figures. No. For a final hearing? No. And you're not going to you know, it's most likely you're not going to get your cost back at the end of a final hearing, because mostly in family cases, each party pays their own costs. So that's a huge, huge, significant factor when considering whether you want to issue court proceedings. Yeah. But clearly you might you might need to get a third party's decision to be imposed on you. If you can't. If you can't reach an agreement.

00:28:42 Speaker 1: Some people don't want to be there, but are forced to issue proceedings or stay in the court process because their ex and their perhaps their lawyer on the other side is averse to anything other than court proceedings. And they will not arbitrate. They will not do a PhD. They won't. They're not collaborative. And you are then left with your only option, which is going through the court process. Um, again, even within the process, most cases do settle FDR. They don't go to final hearing. it's a small percentage of cases that go to final hearing. We see a couple, don't we, every year that end up going to final hearing. And it's usually because there's just been no other way. Um.

00:29:30 Speaker 2: The parties are just too far apart. Yeah. Okay. Well thank you. Thank you very much. It's been great to talk about these options today.

00:29:39 Speaker 3: Thank you for listening. We produce podcasts every four weeks, and you can listen to any of our other podcasts on Spotify or Apple. So thank you very much.