An acting judge has made a call for the parties in divorce and family matters to take the easier route of alternative dispute resolution rather than battle it out before a judge.

Acting Justice Alexandra Wheatley, writing for the Collaborative Law Alliance, a group launched in 2006, said that the courts should be “the guardian and arbiter of last resort — not the default mechanism for family dispute resolution”.

She instead proposed the use of collaborative law, a voluntary approach where parties assisted by professionals worked to “resolve disputes respectfully and creatively”.

Mrs Justice Wheatley further suggested the use of alternative dispute resolution, which looks to settle outside of the courtroom through methods such as mediation, arbitration and early neutral evaluation.

Mrs Justice Wheatley wrote that the court was “best reserved for those exceptional instances when parties are unable to craft their own future”.

She explained: “The court’s involvement, in my respectful view, [should] be reserved for circumstances where collaborative or ADR processes have been exhausted or are clearly inappropriate, such as in cases involving domestic violence, power imbalances or entrenched non-cooperation.”

However, Mrs Justice Wheatley added: “The courtroom ought not to be the first stop for families in distress, but the final station after all other avenues have been earnestly pursued.”

Mrs Justice Wheatley’s article came as the introduction of family arbitration nears the finish line for the island’s courts.

The acting judge explained that traditional litigation came with “a distinctive set of burdens,” including being adversarial, lengthy and expensive in nature.

Mrs Justice Wheatley, who was trained in the collaborative law process, said the process focused on “open disclosure, transparency and the identification of common interests” while providing a neutral mediator.

She said it had resulted in more amicable relationships, tailored solutions, a better sense of empowerment and satisfaction, and improved efficiency, all while sustaining confidentiality.

Mrs Justice Wheatley said: “As an assistant justice assigned to the Family Division of the Supreme Court, I am steadfast in my support for these processes.

“Let us work together — judges, lawyers, professionals and families — to make the courtroom the last resort and to build a system that places families, not conflict, at its centre.”

Katie Richards, the CLA chairwoman, said that Bermuda could “benefit significantly” from the collaborative law process, particularly as options for family law dispute resolutions were “extremely limited in Bermuda”.

She emphasised that the impact of lengthy and strenuous litigation “cannot be overstated” and added that children often suffered the most.

Ms Richards added that, in some cases where ADR was proposed, some law firms had refused the process, preferring instead to resolve the matter with “a lengthy trial”.

“We have had several cases recently where the costs incurred have been grossly disproportionate to the issues,” Ms Richards explained.

“A number of those cases have ended up in a lengthy hearing where the parents of children are pitted against each other over many days.”

She said that Britain had recognised the damages lengthy proceedings could cause and last year implemented rules to encourage parties to consider non-court dispute resolution at every stage of proceedings.

Ms Richards recognised that care would be needed when implementing ADR in instances of abusive relationships.

However, she added: “There are robust protections, including communication guidelines, as well as protections when one party is financially stronger or holds all information as to the family finances.”

Georgia Marshall, one of the island’s leading family and matrimonial lawyers, said she backed the collaborative route.

She added: “When it works, it works well. But when it doesn’t, there are inherent issues.

“There are alternative forms, and they should all be explored with your attorney.”

Ms Marshall said the alternative option could spare families distress and expense — but highlighted a practical advantage as well.

“There’s definitely a need to relieve the courts of pressure,” she noted.

“They’re pressed, that’s for sure, and from a judge’s perspective, the more alternative forms of dispute resolution that are available — that are not as costly and time consuming and acrimonious — the better.”

Ms Marshall said parties confronting a divorce or family dispute also had recourse to mediation and arbitration.

She added: “We’ve got family arbitration rules that have passed. The rules are being amended, so they will provide the framework for that third limb of alternative dispute resolution.

“It’s not up and running yet, but I’d imagine it will be in short order. I think we’re all on the same page that it’s not necessarily the best form of dispute resolution to proceed through the courts.”

Ms Marshall told The Royal Gazette: “Primarily we’re dealing with a scenario where the parties have lived together, and over many or a few years have created families and financial interdependence.

“Sometimes it’s difficult to extricate the parties from that, particularly when they have a lot of hurt feelings and are emotionally charged.”

However, she warned that collaborative law had pitfalls, such as when “you have spouses who inherently, during the course of marriage, have no had equality in the marriage”.

Ms Marshall said: “Often the party of weakness is the female spouse, and the party who has been and continues to be in the position of strength has full knowledge of the details of the family finances.

“So if you’re a husband who has complete control of the purse strings, you could want to encourage the collaborative route because you’ll continue to exert that strength.”

Ms Marshall explained that disclosure was voluntary in collaborative proceedings.

“At the end of the day, there’s no mechanism, as in the Supreme Court, where a judge can tell you to produce the documents or be in contempt of court, or give an order to counsel.”

She said snags could lead to the process becoming “as costly and drawn out as the Supreme Court”.

“If it fails, then the retainer between the party and the collaborative attorney comes to an end,” Ms Marshall said. “You have to give notice to the other side that you’re firing your attorney, getting another and starting over. That can be after a relatively lengthy process.”

She said that because of the money and time invested, one side might feel under pressure.

Ms Marshall added that a history of domestic violence would likely rule out collaboration.

She said: “I’m not suggesting I don’t support the collaborative approach. It works well when parties are motivated to resolve matters. But it is not a panacea.

“The parties can also enter mediation. I prefer that route because it is without prejudice. If the negotiations come to an end, you can move on to the court process without having to give up your attorney.”

Ms Marshall said she looked forward to arbitration as another option, though she conceded it was “not all things to all people”.

She added: “The rules were formalised but are being amended. It will allow parties in a divorce scenario to go before a private arbitrator and have their matters resolved.”