17th Jul 2020

Can Alternative Dispute Resolution beat Court backlogs?

It is hard to think of any aspect of society or commerce which has not been impacted by the COVID-19 pandemic. The Court Service both in terms of its administrative function and physical court hearings, has been significantly impacted. Social distancing measures have reduced staffing numbers and administrative capacity and ruled out physical court hearings except in cases of exceptional circumstances.    

Changes and delays in Court

The Court, its staff and users have however adapted well to these abruptly imposed changes and everyone is doing their best to facilitate judicial processes including the conduct of court hearings on a remote basis, using available telephone/video conferencing platforms. It is the ‘new normal’, and just as with the shift to working from home for many, it is likely to continue for the foreseeable future.

The challenges faced by the Court have inevitably resulted in delays. It was previously possible to conclude a divorce process within 4 – 6 months. Current timescales are approaching 12 months. There is a huge backlog of cases involving children and financial settlements with no certainty about when they will be heard.

Is there another way?

These challenges have brought to the fore the alternatives to Court proceedings – Alternative Dispute Resolution (ADR) to give the official title. These alternative processes take place outside the Court arena and hold the main advantages of avoiding delay and retaining control over the progression of matters. There are several ADR options including:

  • Family Mediation. Mediation can help you reach an agreement about disputed issues arising from your separation (e.g. children, finances, communication). Mediation is voluntary. Mediators are impartial, do not advise you, and do not impose a decision upon you. Mediation is a voluntary process and can provide swift and agreed outcomes.
  • Collaborative Family Law. Both parties instruct lawyers who are specially trained as Collaborative Lawyers who work together to achieve an agreed resolution. A constructive and problem-solving approach is taken, with all dealings taking place around a table, and the interests of any dependent children coming first.
  • Arbitration. A bit like a ‘private’ Court process, but once you have agreed to go to arbitration an arbitrator will make a binding decision instead of a judge. The decision can be enforced in court. It is available for financial disputes and disputes about children. It can provide solutions over a much shorter timescale, and the process can the tailored to meet the requirement and circumstances of each case, rather than the ‘one size fits all’ processes at Court.
  • Private ‘FDR’. The Parties pay an experienced lawyer, retired or part time judge to carry out a “Financial Dispute Resolution Hearing” for them with the aim of reaching a settlement about finances. An FDR is a hearing where a judge hears a summary of the parties’ positions and gives guidance to them about what outcomes are likely or sensible. It can save considerable time and cost.

The Family Law team at Berwins have substantial expertise in ADR and an enviable reputation for this.  We certainly recommend that all our clients consider ADR options before Court unless there are good reasons not to do so.

 

William Kaye is a Senior Consultant within Berwins' family law team. He is highly regarded by both clients and contacts and has over 20 years' experience supporting separating couples. 

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