Disagreements within a family are often one of the most challenging issues to manage and can leave a family fractured. Family breakdown involving divorce or separation-related disputes are usually difficult. There are various ways of resolving family disputes, even the most challenging involving divorce and child-related issues. The vast majority of people do want to find a solution without resorting to legal remedies. Alternative dispute resolution is highly recommended as a way of solving such a dispute which avoids a costly court case.
In this guide, we explain your options for resolving different types of family disputes and provide guidance on choosing the best option for you.
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Family disputes can occur for many reasons, such as a disagreement over the custody of a child or an inheritance. The following are some frequent types of family disputes:
Losing a loved one is often upsetting, and an inheritance dispute can make things even more stressful. After the death of a relative, disputes often occur with regard to the disbursement of the estate, particularly when one family member is left out of the will and others inherit. Inheritance disputes also occur following the death of a parent, where siblings don’t all receive equal benefit from the estate. In some cases where the deceased dies intestate, where no will has been drafted, the laws of succession are invoked and this can cause a dispute as the children of the deceased to receive the same proportion of the estate, which can cause resentment, particularly when a benefactor who is automatically included has had little or nothing to do with the deceased during their lifetime.
Additionally, wills are contested when parties believe that the deceased was not capable of making lucid decisions, for example, the deceased may have been diagnosed with a cognitive impairment at the time of drafting their will or was the subject of undue influence by a third party.
Read more about the causes of inheritance disputes here.
The divorce rate has risen steadily over the past 50 years. Divorce is obviously a sensitive topic for most people, and where possible, avoiding a confrontational attitude when resolving the dispute should be attempted. The best way to manage disputes that arise during a highly charged divorce is to use mediation or alternative dispute resolution – this can help you avoid a protracted court case and hopefully result in a less volatile ending to your marriage.
Disputes involving children can be exceptionally challenging and arise for a variety of reasons. Common causes of disputes regarding children include:
Are you involved with a family dispute involving children?
The alternatives to taking family disputes before the court are as follows:
Mediation, sometimes known as family dispute resolution, can be a less stressful way to resolve disputes. An unbiased mediator will provide impartial guidance in regards to the basis and merits of both sides of your dispute - however, they will not offer legal advice.
You will find an appropriate mediator at a mediation centre, such as the National Family Mediation Service or the London Mediation Office. These resources can be located online. The mediator may well be a lawyer, however, their role is to act as a neutral party and guide and support the discussion relating to the unresolved issue from both sides. Mediators are there to help you to reach a mutually beneficial conclusion whilst ensuring the discussion remains calm. In mediation, any agreement made will not be legally binding unless the parties request a court to make an order encompassing the decisions arrived at.
Arbitration is most commonly used for financial or disputes involving children as opposed to mediation. An appropriately qualified person is appointed to adjudicate and can also provide legal advice. Arbitration also differs from mediation in that the arbitrator’s decision will be final and legally binding. A court order will be required to give effect to the final agreement.
During the arbitration, you will be able to speak for yourself and put your point of view forward, at the same time as seeking legal advice. Giambrone & Partners' arbitration services ensure disputes are settled as quickly as possible to minimise both costs and stress associated with lengthy discussions. You can find out more about Giambrone’s arbitration service here.
Should you choose the path of collaborative law, both you and the other party in your dispute will have solicitors representing each party present in the room. Each party’s representative will work together to reach a mutually beneficial agreement.
Collaborative law sessions will be prefaced by each party signing a contract undertaking to attempt to reach an agreement. If collaborative law does not lead to a mutual agreement, your remaining option will be to go to court.
The best option for you will depend on the nature of your dispute and the relationship between both parties. If you feel you would struggle to resolve a dispute in the same room and cannot communicate with the other party calmly, arbitration may be the best option. Alternatively, if you would prefer to communicate with the other party in a less formal setting and feel you can communicate in a civilized manner, mediation will be the best option.
Another factor that is relevant when choosing the method of resolution is the nature of the dispute – if the dispute is complex and you may need legal advice, in that case, arbitration may be the best option. This method, ensure that you can rely on the arbitrator will make a formal decision. If a family law case involves children, we recommend seeking legal advice, as family law issues involving related to children can be complex, and the consequences of a decision made without knowledge of the legal significance could have a negative impact on all parties.
Though a court case is often the least favourable option of resolution due to the time-consuming and costly nature of a court case, recourse to court sometimes is the only option. This may be the case when methods of alternative dispute resolution are unsuccessful, or both parties are unwilling or unable to communicate in a reasonable manner.
Giambrone can provide a thorough understanding of the different aspects of litigation and consequences related to yourself, your family and your future. We provide access to a pragmatic and grounded approach to problem-solving with our dispute resolution services.
You can find out more about Giambrone & Partners' litigation and dispute resolution services here.
The following is a guide to how different disputes are dealt with in court:
In court, your solicitor will put your argument forward, as will your spouse’s solicitor. The judge will hear all the arguments and then make a decision which will be an enforceable decision sanctioned by the court.
The judge will make a decision based on the arguments that have been presented. It is possible that this decision may not be favourable or desired either party, however, when the judge reaches a decision, which the court believes to be in the best interests of all parties, including financial decisions, visitation rights, and how property is divided, that decision is final.
Once you enter the court, any decisions relating to your child will be in the hands of the judge. There are certain core principles that are always considered by the court in all child-related cases. These include the Paramountcy Principle, which states that the needs of the child are the most important overarching consideration in the situation; this includes their financial wellbeing and who takes care of them. Proceedings also cover the Delay Principle, which states that any issue pertaining to the welfare of the child should not be delayed, as this could negatively impact the child.
The Welfare Checklist is a list of the factors the court will take into account when they are deciding what is best for the child. These include a range of factors that will lead the court to make its decision, such as the wishes of the child, their emotional and educational wellbeing, how their needs might change and how capable their potential caregivers are.
In the event of an inheritance dispute, you will need legal advice and supporting evidence of your claim or defence against any arguments against you. If the matter is taken to court your lawyer will present your case, and you may be called to give evidence. The judge will hear the evidence from both sides, and a decision will be made by the judge as to the validity and legality of the claim. The decision will be legally binding.
Are you still unsure of how to resolve a family dispute? Contact Giambrone here for expert advice.