COVID-19: Alternative Dispute Resolution & Arbitration in family law cases
News article published on: 14th April 2020
The government guidance re social distancing means that the Courts can no longer accommodate personal attendance at hearings except in very exceptional circumstances.
All Judges are now working from home and hearings are either being adjourned or heard remotely and urgent hearings are taking priority. Urgent being maintenance pending suit, interim maintenance, legal services payment orders, S.37 applications and enforcement although this is not exhaustive.
This means that in order to prevent delays parties should consider alternatives to court. That involves arbitration, mediation and private Financial Dispute Resolutions (FDRs). The court may adjourn the hearing to give the parties time to explore alternatives in any event if they have not already done so.
Mediation can and should be considered throughout a case, whether in court proceedings or not.
In financial cases, the first appointment (First Directions Appointment) can be circumvented by adopting the accelerated procedure and agree the directions to get the case to the FDR. If directions cannot be agreed then the hearing should be dealt with on paper (i.e. a Judge will make an order in their own time).
The FDR may be adjourned or heard remotely. Parties should consider private FDRs where a barrister/solicitor/retired Judge will give their indication on a realistic final award as if they were the Judge sitting at the FDR. These generally can be organised quicker than court appointed FDRs.
Arbitration can be used for private children matters and financial matters. Arbitration, unlike private FDRs and mediation, is binding. The arbitrator will be a specialist in the required area and generally can be available at short notice. Speed and flexibility are obvious advantages compared to the court process. Unfortunately arbitration is not applicable in all types of cases. The Rules helpfully list the types of cases which are not appropriate for Arbitration. For links to both see below:
Children Scheme Rules (Article 2.2)
Financial Scheme Rules (Article 2.3)
In cases where the court has adjourned the hearing indefinitely, or for a number of months, arbitration/private FDRs/mediation are logical alternatives to ensure that the preparation work and fees incurred are still put to good use.
Blog post written by Sarah Scott, Associate Solicitor in the Family Law team.