The court system is dead – long live what exactly?

Since ‘lockdown’ became a feature of our daily lives on 23 March 2020, most of our lives have changed significantly, both personally and in the workplace. Probably, the full extent of that change is not yet properly appreciated.

Nimble, adaptable, resilient and resourceful, family law professionals are arguably well placed to embrace these changes and turn them into an advantage. Clients would welcome the opportunity to be seen on screen in the comfort and familiarity of their own home when discussing issues relating to the most personal and intimate aspects of their life. Is now the time to revolutionise the approach to dispute resolution?

Yet the reality is that court applications have more than doubled across the country in the last 12 months and out of court methods of dispute resolution continue to be viewed with suspicion by both the public and the legal profession. So, why is that?

Confidence in the courts

The public perceive the ‘court’ to embody justice. A judge is seen as a person who will ‘right all wrongs’ and impose ‘fairness’.

The court process remains the more comfortable work method for many family practitioners – particularly those who have no training at all in out of court methods of dispute resolution. That number remains considerably higher than 50 per cent.

How many times will you hear a family lawyer say that a case is ‘unsuitable’ for anything except court? What are the attractions?

·       Familiarity of process.

·       Client expectation.

·       Safe from an insurance perspective.

·       Ability to involve junior staff in the case.

·       Fee income. 

According to a 2021 survey commissioned by Irwin Mitchell and conducted by OnePoll, 39 per cent of divorcees were unaware of out of court dispute resolution at the time of their divorce and 35 per cent were not offered this as an alternative approach. One assumes that those surveyed had legal advice. Thus, those who chose not to consult with a lawyer are even less likely to have any understanding of the options available as there is little clear, easily accessible information available in the public arena.

This may the right moment to pause an consider the main ‘out of court’ options available.

Mediation

Mediation is probably the best known out of court method due to the requirement to attend a mediation information and assessment meeting, except in exceptional circumstances, before a court application can be issued. The actual purpose of a Mediation Information and Assessment Meeting (MIAM) is to discuss all forms of out of court options, especially arbitration if an adjudication might be needed.

The role of the mediator is to facilitate discussion between the couple to achieve an outcome which a court might order.

A new brand of mediation, a fusion of the civil/family models, is hybrid mediation. The only difference between this and the classic model is the ability on the part of the mediator to hold confidences between the couple to assist negotiation. It is a process which lends itself to couples in high conflict, i.e. those who would ordinarily find themselves in the court process and is therefore a highly suitable alternative to court.

Arbitration

Arbitration is available in both financial remedy and children act proceedings and full details of the process can be found on the Institute of Family Law Arbitrators’ (IFLA) website (ifla.org.uk).

Importantly, arbitration can be suitable for low money cases where there are insufficient funds to meet needs. Arbitration can also work well for litigants in person as, unlike the judge, an arbitrator does have the time to guide them impartially through the process.

The Certainty Project

The Certainty Project takes the concept of achieving an agreed outcome or if agreement is impossible, having an adjudication. It combines mediation and arbitration. An arbitrator is appointed at the outset to have overall charge and to be available to make interim decisions on any issues which might arise.

The process is likely to take about six months from start to finish, neatly following the timeframe for the divorce. Again, it is also suitable for litigants in person.

Collaborative practice

The couple will instruct collaboratively trained lawyers to help them achieve an outcome which is in the best interests of the family and acceptable to both. They will agree not to issue court proceedings.

Collaborative practice had become less attractive due to the possible loss of the lawyer of choice if the process broke down. Practitioners had developed an alternative version to the process called ‘collaborative lite’ which removed the need for such change of representation. There are now moves afoot to amend the process so that solicitors can be retained if the couple move to arbitration for adjudication.

Private FDR

Most cases in the court process settle either at or shortly after the financial dispute resolution (FDR) appointment. With court delays extending to over a year and cases being adjourned at short notice due to the unavailability of a judge, the private FDR is becoming increasingly popular. A number of barristers are giving up their adversarial practice to concentrate on a full-time private FDR judge role.

Neutral evaluation

This is perhaps one of the least used out of court methods, but perhaps one of the most useful. The couple (who may be unrepresented) may want a view, on the basis of a joint instruction, of what a reasonable outcome might look like.

Alternatively, there may be a sticking point where there are valid arguments either way, where a neutral view might break impasse at an early stage.

Spoilt for choice

When you consider the list of options, you might wonder why the majority of couples would not select one of these alternatives, rather than engage in the delay-ridden, expensive and inefficient court process. If conflict is high, hybrid mediation, perhaps within the Certainty Project might be the best choice. If an adjudication is essential, arbitration is the obvious solution. If you have an impasse in solicitor negotiation, try neutral evaluation. Arguably, there is something for every situation.

These options are tailored to the particular circumstances of the couple. Each case is different. There are both time and cost savings. ‘Unsuitable’? Really?

If a decision is needed, why would you not choose the adjudicator who is to make such an important decision, knowing that they have time to deal with your case properly and read all the papers and who seeks a reputation for being diligent and fair. A client once said to me ‘court is all about process whereas arbitration is about outcome’. I could not have put it better.

In Children Act proceedings however, delay will always favour one parent. I believe it is for this reason arbitration in the area of children work has had so little take up to date. Where a Children Act hearing is cancelled at short notice because there is no judge, the resulting delay will favour the parent who is against change – for example, in an internal leave to remove case. The next hearing could be several months or even a year away. But the ones who truly suffer in those circumstances are the children, those whose welfare is supposed to be the paramount consideration – for the lawyers as well as the parents.

Has the time come for the judiciary to properly embrace rule 3 of the Family Procedure Rules and direct that cases move out of court to an out of court process? Should the government take steps to educate the public that there are better more cost-effective ways to achieve justice and fairness than an application to court? Should lawyers be penalised in costs if they don’t recommend out of court options in most cases?

Without doubt, much debate lies ahead of us. As we are all involved in the area of family law are part of the problem, arguably we should all participate in finding the solutions.

Loss of work must remain a fear – which in turn may translates into loss of profit? But, perhaps a better way of working and lower costs might encourage more separating couples to take legal advice resulting in proper advice for a larger number of people – and a maintenance of income for family law practitioners alongside better job satisfaction. Why not give it a try?

Karin Walker is a family lawyer at KGW Family Law kgwfamilylaw.com