18 May 2020
The use of ADR during the coronavirus pandemic
We are currently living through a time of continuing great uncertainty. There is no doubt we will feel the social and economic effects imposed on us by the coronavirus for the foreseeable future.
In the immediate term and for those couples in the midst of family law litigation, the impact of ‘lockdown’ on the Family Justice System became all to apparent when Sir Andrew McFarlane (the President of the Family Division) announced on 19 March that the Courts would only be hearing in person those urgent matters predominantly limited to public law matters surrounding the safety of children. Otherwise, for the vast majority of all other financial and private children law cases, the Family Court would default to a remote access basis for all other hearings (either by telephone or video-link) with many hearings simply being adjourned without further notice.
Two months on and such remote hearings appear to have had varying degrees of success. Initial research has shown that the parties themselves are often left underwhelmed, disappointed and feeling let down by what they perceive to be a ‘non-event’. Matters are further confused by the lack of any unified approach across the Court system with large variances in local Family Courts (and individual judge’s) ability and/or willingness to facilitate and embrace remote hearings.
In these circumstances, and with the most recent guidance from the Central Family Court providing for the majority of financial and private children law applications listed for hearings before 3 July to be adjourned, heard remotely, considered on paper alone or listed for (further) directions only, what other options do couples have?
In these circumstances, Alternative Dispute Resolution (“ADR”) is, more than ever, an extremely powerful tool, and one which can may readily be accessed remotely, by telephone and/or video-link. This article will look at the strengths of ADR in the context of the current pandemic and the continuing necessity for social distancing.
Forms of ADR in the family law context include:-
Arbitration : The use of an agreed third-party arbitrator (an experienced family law practitioner) to be jointly instructed to determine a disputed issue (whether that be discrete or substantive) which is then converted into an enforceable Court Order. Arbitration is often perceived to be most similar to a Court hearing, with the decision being binding on the parties and the proceedings typically following the conventional Court procedure (although one of the attractions of arbitration is that the parties may put in place a bespoke structure and timetable to their own convenience). Arbitration also takes place on an entirely private and confidential basis and cannot be reported or take place in open Court as can conventional litigation. Relevant in the current climate is the fact that it is also possible to have an arbitrator determine an issue on the basis of a paper application. The arbitration scheme was recently extended to cover certain applications in relation to children, including those regarding leave to remove a child from the jurisdiction (whether permanently or for a holiday). However, as well as those cases with significant safeguarding issues, arbitration cannot be used to determine child abduction proceedings and disputes concerning life-changing or life-threatening issues.
Mediation : The use of an agreed third-party mediator (usually a family law barrister or solicitor although it may be an individual with a therapeutic background) to assist parties to negotiate a settlement. Critically, in contrast to arbitration, there is no imposition of a determination in the context of mediation. If the clients reach an overall agreement the mediator will record this in a Memorandum of Understanding which remains privileged until both parties agree (usually having received their own legal advice) to enshrine the agreement into a draft Consent Order which may be filed with the Court on paper for approval and sealing. Mediation thus provides a wholly privileged environment for each person to air their views without fear of any concession being ‘used’ against them. It is usually conducted with both parties and the mediator in the same room, but may (if necessary) take place with each party in separate rooms with the mediator moving between the two (so-called ‘shuttle mediation’).
Private Financial Dispute Resolution (“FDR”) : A private version of the FDR Appointment in conventional proceedings. The private FDR takes placed before an agreed tribunal (again, usually an experienced barrister or a retired Judge) on a without prejudice basis both parties having set out their respective positions before hand in writing. Having heard submissions on behalf of both parties the tribunal will then give an indication as to how they believe the Court would resolve those matters between them and determine their claims for financial orders. Having received the tribunal’s indication both parties and their respective advisors are encouraged to see if it is possible to negotiate an overall agreement which may then be enshrined in a draft Consent Order. The FDR tribunal cannot impose an outcome on the parties, but it is right to say that the majority of contested proceedings do compromise at or around the FDR Appointment.
A variant on the Private FDR which may also be adopted in children matters is the so-called Early Neutral Evaluation where an agreed tribunal expresses a view (usually at the outset of the dispute) on the likely outcome by way of an aid to settlement.
Discussion and Negotiation : It should not be overlooked that matters may always be resolved with the assistance of both parties’ solicitors.
Therapeutic Support – Though not technically ADR, for those couples who have taken the current pause in daily life to reflect upon their separation and what it means for them, their partner (or former partner) and any children, therapeutic and counselling services remain widely available.
The versatility of ADR and the naturally less intimidating arena in which it operates arguably lends itself more readily to the use of video-conferencing such as Zoom or Skype than does the necessarily more formal and procedural regulated Court structure. The technology allows for the use of tools such as ‘break out rooms’ and it is possible for private messages to be sent to parties while on-going discussions take place and thus ensure that the dynamism of the ADR process is not lost via the online forum.
In the current uncertain economic environment, the prospect of expensive and time-consuming litigation, coupled with unquantifiable delays, is an unwelcoming prospect. Moreover, the costs of any form of ADR are likely to be significantly lower and the timescales much shorter when compared with taking a case conventionally to a final hearing.
And, of course, most forms of ADR enable the parties to retain some form of control and input and to arrive at a resolution by consent as opposed to having one imposed on them. It can, if successful, therefore produce a much more harmonious result. In these turbulent times, this can only be welcomed.
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This publication is not intended to provide a comprehensive statement of the law and does not constitute legal advice and should not be considered as such. It is intended to highlight some issues current at the date of its preparation. Specific advice should always be taken in order to take account of individual circumstances and no person reading this article is regarded as a client of this firm in respect of any of its contents.
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