The family courts were already struggling with the volume of family law cases to deal with before March 2020, when the first UK lockdown as a result of the COVID 19 pandemic was imposed. Needless to say, their workload has only increased as the number of courts open to deal with actual court hearings has reduced, whilst the number of cases which they have to hear is growing. The lockdowns have, if anything, given rise to more family law issues to be resolved.
Alternatives to Court for Family Issues
Even before the pandemic, family lawyers, partly in recognition of this burden on the family courts, started to consider alternative ways of dealing with family disputes. Mediation was perhaps the first of these to gain some traction with encouragement, in particular, from the Legal Aid Authority(LAA).
The LAA felt that this was not only a potentially more cost-effective way of dealing with family matters but also a more conducive means of maintaining relative family harmony, which is particularly important where there are children involved. However, mediation is not suitable for all family disputes and in some cases, it was felt that a more structured approach was beneficial. This paved the way for private FDRs, arbitration and hybrid mediation.
Financial Dispute Resolutions Appointments
When dealing with financial remedy matters, the courts include as part of the process an FDR or Financial Dispute Resolution Appointment when the judge will consider both parties’ positions, along with some of the evidence, before giving an indication of an appropriate settlement. This is not a decision or determination because the judge does not hear or consider all the evidence that they would at a Final Hearing.
Nevertheless, it can be very persuasive and will very often result in the parties reaching agreement either on that day or shortly afterwards, thereby avoiding the risk and further costs involved in pursuing the matter to a Final Hearing. The current problem is that it can still take many months, with the consequential accumulation of costs, before an FDR takes place.
Given that the judges who deal with these cases are usually former barristers or solicitors, it was felt that such an indication could be given just as persuasively typically by a practising barrister who specialises in family work, but much more quickly because the parties are not dependent on court availability. Of course, it is necessary to pay for the services of this individual, whereas the only fee payable for a judge is the court fee paid when the application is issued. However, given the time and costs saved as a result of the matter being dealt with quickly, it is generally considered cost-effective overall.
As with the court FDR's, a determination is not made within a private FDR, rather, an indication is given. This means that they may not be suitable for all cases. An alternative is arbitration, which is an out of court process, often dealt with by similarly qualified family lawyers. The difference with this is that a final binding determination is made which will then be incorporated into a consent order by the court.
In terms of costs and speed, arbitration has similar advantages to private FDRs. Both of these processes are less formal than court proceedings and can be conducted using video conferencing platforms in the current pandemic. They can also both be used for financial remedy matters and children matters. The scope of arbitration has now been expanded so that arbitrators can deal with applications for permission to take a child out of the jurisdiction either temporarily for a holiday, or permanently. This is extremely useful where a determination is required urgently.
Hybrid Mediation for Family Matters
Finally, a relatively new process known as hybrid mediation has been developed. As its name suggests, it is a combination of mediation and arbitration in that an attempt is made first to resolve matters by agreement with the assistance of an independent mediator.
Unlike traditional mediation, the parties’ lawyers are always present so that if an agreement is reached the appropriate consent order can be prepared and signed immediately. If an agreement is not reached, the parties proceed to arbitration.
All of these processes have the advantage that the parties can choose the individual who will either assist them in reaching an amicable conclusion or determining the matter finally, unlike the court process where they cannot choose the judge!
If you would like more information on how to resolve family legal matters outside of court during the pandemic, speak to one of our helpful and friendly family solicitors today.