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Andrew Greensmith, Solicitor, Deputy District Judge, Head of Private Client, Dickson Haslam
Who would argue with the presumption that all family law disputes are appropriate for referral to alternative dispute resolution (ADR), considering ADR's pivotal role in family law? One would assume few family lawyers would. Consider however the client who believes the suggestion to enter ADR is a ploy to expose him to further mental abuse from his partner; or the client who believes that his partner is hiding behind her lawyer's interpretation of the case and thinks that the only way of revealing the truth will be for her to be cross examined. In family cases, once financial proceedings have been issued, there is the fall back position that the case will be listed for a financial dispute resolution (FDR) hearing where the court will become actively involved in promoting a settlement by court led mediation.
All claims under s 15 of the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) dealt with by family lawyers, are the result of relationships which have broken down. While governed by the Civil Proceedings Rules 1998 (CPR), they are family proceedings in every sense of the word. This is evidenced by their frequent link with an associated application under Schedule 1 to the Children Act 1989 and sometimes with an application for a domestic violence injunction. Where proceedings have been issued and the client is reluctant to engage in ADR, how much can the lawyer rely upon the courts to promote resolution of the proceedings before the matter progresses to a full hearing? If the solicitor for the other party co-operates, this can be achieved easily. However what happens where the other party is a litigant in person? Or, worse, what happens where one of the solicitors refuses to acknowledge that the court has the ability to list for a FDR appointment because the case has been issued under CPR.
Frequently, TOLATA cases are conducted by family solicitors who usually readily co-operate in asking the court to list the case for an FDR type hearing. If the solicitor is not familiar with this way of dealing with such applications it will be left to the court, usually on allocation to adopt a pro-active approach. There is much to be gained by the court adopting this approach in TOLATA cases. In matrimonial cases the parties begin from a position of basic entitlement; the function of the legal process is usually to establish how and not whether assets are to be divided. In TOLATA cases, (particularly where a constructive trust is claimed) one of the parties has first to establish an entitlement and only then does the question of apportionment arise.
To read the rest of this article, see November  Family Law journal.
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