The COVID-19 pandemic has had an impact on everyone and everything. The consequences of the pandemic on family law and the family law process have been numerous but one notable consequence has been the aggravation of an already over-burdened litigation and court process.
As time has passed since the onset of the pandemic, the courts have had to adapt and we now find ourselves in a position whereby many hearings are being conducted remotely by telephone hearing or by video conference hearing. However, at the onset of the pandemic, prior to the guidance issued by Sir Andrew MacFarlane on 19th March 2020, many practitioners and clients were unsure if and when their listed hearings would go ahead.
A Financial Dispute Resolution is the second listed hearing in the financial remedy of divorce process. It necessarily involves the parties making their cases to the judge, the judge giving an initial indication and the parties and their legal representatives then going on to have conversations and negotiations, collectively and individually to see if a compromise and an agreement can be made based on the judge’s comments. My experience of attending these hearing in person in court is that they can often last all day. There is a lot of walking between rooms to negotiate and potentially multiple trips in and out of the court room for further comments from the judge. Similarly, a final hearing in financial remedy proceedings involve cross-examination of the parties by counsel. The parties give evidence and it is what most people imagine in a traditional court hearing. At the onset of the pandemic, it seemed difficult to imagine how these types of a hearing could be effected virtually. Consideration was given to adjourning hearings and getting them re-listed for a time when normal process could resume and attendance at court was possible. However, impact of COVID-19 meant that we did not know when that might be but it was almost certain that parties could expect to wait significant amounts of time for their cases to be relisted. This meant potentially months and months of increased legal costs as they waited for their new hearing date.
Non-Court Dispute resolution has been an option to clients for many years. Clients have often tended to prefer the traditional and well-known court process. However, the pandemic meant that alternative dispute resolution had to be given greater consideration to bring cases their conclusion. Our experience in non-court dispute resolution (alternative dispute resolution) with family law cases has been with arbitration.
Family Arbitration is a process whereby the parties enter into an agreement that they will appoint an adjudicator (“the arbitrator”) to hear their case and to make an award which will be binding. It is similar to what the parties would experience at a “final hearing” in the court process. The arbitrator makes an award and the award is then drafted into order to be sealed by the court. There are many benefits to arbitration. The parties get to choose their arbitrator. The arbitrator is a specialist in family law who often practises as a family law barrister and is trained as an arbitrator. The parties get the benefit that the arbitrator will fully read all of the papers in relation to their case. The pressure on the courts often means that the judge is unable to thoroughly read everything whereas in an arbitration setting, the parties can be assured that their case has been fully read, digested and understood for all its complexities. Arbitrators will usually hand down a written judgement promptly within a few days of the hearing. It is a private process and the costs of the arbitrator are usually shared by the parties.
As a trainee solicitor within the Family Law department, I have now been present at two virtual arbitrations conducted by Zoom. The virtual aspect of the hearing could have added additional challenges for the parties and us as their legal representatives to overcome. However, it is my experience that both virtual arbitrations have been successful and that there has been no tangible negative impact on the parties or their cases. Zoom is a technology that facilitates the workings of a both Financial Dispute Resolutions and Final Hearings. Zoom facilitates virtual “breakout” rooms so that private negotiations can be had whilst maintaining the virtual “main room” where all parties and the judge/arbitrator are present. Cross-examination has run smoothly and effectively on both occasions in the context of a final hearing and provision has even be made to comply with Practice 12J whereby in the context of domestic violence, a screen would be placed between the parties in an “in person” hearing. On Zoom hearings, when evidence is given, the party not being asked to give evidence can be asked to be present via audio only so that the witness does not need to see the other party. Overall, I consider that the family law process will be changed forever by the impact of Covid-19. It is hoped that alternative dispute resolution is given greater consideration by clients as a quicker and effective method of resolution. I would encourage clients not to be put off by what can be viewed as quite a novel process. It is just as effective as your day in court.
If you are in the process of a divorce and are concerned about an upcoming hearing you may have listed at the court or are involved in a family law dispute for which you feel an arbitration may be a useful, please contact our Family Lawyers on 0330 0945 500, email firstname.lastname@example.org or complete our Online Contact Form and we’ll get back to you.