Answering a broken system

It would be easy to blame delays in the family court system on the paralytic effects of covid-19 but the root causes predate the virus by a number of years.

The rapid closure of courts and the centralisation of applications where staffing levels weren’t increased enough to cope; lengthy delays to receive hearing dates; the increasing number of lay party litigants following the cessation of legal aid – these all added to the woes which have been well documented and reported.

Before the outbreak, there had been talk of moving the system on digitally, but this was slow and the whiff of a suggestion of remote hearings quickly put down. What has happened as a result of covid-19 is remarkable. Lawyers were thrown into the use of telephone and online hearings, and in most cases, it’s worked.

The courts have adapted quickly. It’s no secret that tech and video apps may not always work, but there have always been problems with in-person court hearings. Lawyers and parties appreciate not having to trudge to court for a half-hour hearing listed for 10am, but possibly not heard until the afternoon because a case had overrun.

Hearings now happen at the time listed. However, one problem this is creating is that listings are reduced and the court is focusing on the important issues such as urgent applications and children. Financial cases are not seen as a priority, which is causing more delays to those cases.

While the courts’ fast adaptation to this new normal has been impressive, it’s vital for lawyers to consider alternative forms of dispute resolution to ensure cases aren’t left behind.

More than ever, family lawyers need to stop being sniffy about the alternatives to court and focus on solutions which have better longer-term outcomes for the families we have the privilege to assist. Why would we not want our clients to preserve their funds for their families and overcome the problems in a faster, kinder way?

I remain shocked by the number of lawyers that don’t encourage clients to attend mediation, and instead get their client to call the mediator ‘to sign the form’.

The use of online meetings means if there is animosity, the parties could be in separate virtual rooms, a form of online shuttle mediation – avoiding the parties having to attend the same venue.

Alternatively, hybrid mediation is a new option which includes the lawyers within the mediation. It is well-suited to complex financial matters and for the client who feels more vulnerable and needs their lawyer’s support.

In collaborative law, parties agree that they want to resolve issues without contested court proceedings and sign up to this. There are round table meetings (which can be virtual) where the parties attend with their lawyers. The couple decide the priorities and then receive legal advice from both lawyers. 

Early neutral evaluation is another option. Both parties seek a joint opinion from a specialist lawyer; giving them an idea of what might be ordered and so encourages agreement and a consent order. An exciting new option is the Certainty Project initiative. The parties sign up to arbitration and directions are given.

The parties then attend mediation. If everything is agreed, this decision is implemented. If only some aspects are agreed, these parts are implemented while the arbitrator makes a decision on bits not agreed. If nothing is agreed, the arbitrator decides all the issues. The parties know from the beginning that there will be a final solution and when this will happen.

Arbitration is an effective alternative where disputes concern finances, and also children. The arbitrator can be requested to make specific decisions, making the process ideal for discreet issues (eg whether the children stay Sunday night or go back, or whether there should be ongoing maintenance). Like all the other processes, it can be done online (or even by email or telephone).

We have so many more tools in our toolbox. We should not be afraid to use one or a combination of them all, rather than continuously reverting to the court – particularly in these difficult times when it often makes issues worse.  

Linda Lamb is director at LSL Family Law lslfamilylaw.co.uk

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