Long waits for hearings to be listed and cases being adjourned at short notice owing to lack of judicial availability were fairly common issues and occurrences in family law practitioners’ lives long before the pandemic. Covid-19 has only exacerbated these difficulties.
In December 2020 HMCTS estimated that it might take three years for the backlog to return to pre pandemic levels. Stephanie Boyce, the President of the Law Society, has recently voiced her ongoing concerns “about the significant backlogs in the family courts – which pre-date the pandemic” and that “delays themselves can cause significant harm as well as uncertainty for the parties involved”.
These additional delays, in what was already a stretched system, is little comfort for the parties to proceedings in the family court who are usually turning to the courts as a last resort in order to resolve their disputes in what can be highly charged and very difficult circumstances.
What are the alternatives to court?
In light of the issues facing the court system, clients are electing to pursue alternate options of dispute resolution.
Some parties may elect to use an independent mediator to assist them in resolving their dispute. This can be a swift, constructive and cost effective way of resolving matters but the reality is that in cases where it has already been necessary for one party to initiate proceedings it is not suitable for everyone. Not all couples, and the dynamics between them, are suited to mediation and they may need someone to make a final decision on their behalf.
Where a decision is needed, arbitration can be a very useful alternative to judicial determination. Arbitration can be used as an alternative to most court hearings: from discrete issues, to preliminary and final hearings. Arbitration can be particularly useful where a case has been fully prepared for a court hearing (and all of the relevant costs incurred) only to be vacated owing to lack of judicial availability. If the parties so agree the arbitrator can simply step into the shoes of the judge and determine the issue as the court would have done in those circumstances.
It has been the case that many parties have elected to undertake aspects of the financial remedy process privately for some years by way of private FDR hearings. These are crucially important hearings at which, or after, a large proportion of cases will settle. Prior to the pandemic private FDR hearings were primarily the domain of high net worth cases with the hearings conducted by retired judges, QCs and senior junior counsel.
Since the pandemic private FDR’s are becoming more common place amongst the lower asset cases. This is in part thanks to increasing numbers of more junior counsel offering private FDRs as a service making it a more viable option in such cases. Private FDR hearings are becoming so mainstream that they are specifically referred to within the recently published FRC Efficiency Statement. It is understandably attractive to the courts to encourage the use of private FDR’s to relieve the burden on the court system.
What are the advantages of these alternatives?
One of the main attractions of arbitration and private FDRs is that it is usually the case that they can be accommodated more quickly than court hearings leading to a potentially swifter resolution of matters for clients.
One of the other major advantages is that the parties are able to choose their arbitrator or private FDR judge. They are able to choose someone that they consider has experience relevant to their case, along with practical matters such as the location of the arbitration and a convenient date to all of the parties.
Whereas in court a judge may well be dealing with multiple matters in one day the parties would usually have exclusive “use” of the private FDR judge or arbitrator during that day who will have had time to prepare and consider the papers in detail in a way that cannot reasonably be expected of judges with heavy case lists.
What are the disadvantages?
These are voluntary processes so the parties cannot be compelled to participate unless they wish to do so. For some parties there will naturally be advantages to them of delay and they are less likely to willing to engage in such alternate methods of dispute resolution.
The cost is a major drawback of these options with the clients paying to substitute a judge with an arbitrator or private FDR judge being something that they would have had for free otherwise. The costs of the tribunal would usually be shared between the parties.
Clients will have to balance the additional cost against the detriment of delay. Whilst there is a greater upfront cost making use of arbitration and private FDR’s, their use can ultimately lead to a more cost effective and swifter resolution saving weeks or potentially months of correspondence increasing costs.