The latest lockdown, spanning four weeks from Thursday 5 November, will see courts continue to operate, however, there has never been a stronger case for couples to agree their settlements out of the courtroom.
The COVID-19 pandemic is accelerating societal trends, from the way we work to how we buy goods and services. Many of these changes involve moves towards digitisation and the legal system is no exception. In recent years, when it comes to divorce and financial remedy proceedings, courts struggling with ever-increasing workloads have encouraged parties to consider alternatives to litigation. The Corona virus restrictions, resulting in even longer delays for hearings, adds further impetus towards this for practitioners and their clients.
Alternative Dispute Resolution
Organisations such as Resolution have long-advocated a non-confrontational approach to family proceedings, arguing that it invariably produces better outcomes for separating couples and their children. Known as Alternative Dispute Resolution (ADR), these methods include mediation, arbitration, round table meetings, collaborative law and private Financial Dispute Resolution (FDR). As well as providing savings in terms of both time and cost, these approaches can be far more flexible and tailored to meet the needs and requirements of individual cases. They also provide the parties with a means of having their voice heard and can provide a more satisfactory conclusion to the breakdown of a relationship. It should be noted, however, that not all cases are suitable for negotiation, for example when there is domestic violence or one party will not engage with the process.
Mediation
A family mediator is an impartial third party who will help couples resolve the disputed issues with the aim of producing a private agreement. This ‘Memorandum of Understanding’ can then be made legally binding by instructing a solicitor to draft an order for a court to approve.
Round Table Meetings
Lawyers and their clients meet together in a spirit of open dialogue with the aim of resolving disputes and differences. Third-party experts in specific matters such as tax or family counselling can sit-in to provide additional advice.
Collaborative Law
Parties and their collaboratively-trained legal representatives meet together, having first signed-up to a ‘Participation Agreement’ that commits them to work within the principles of the collaborative process and cooperate in achieving their divorce and financial settlement. If agreement cannot be reached, the lawyers are not permitted to act in any future proceedings, ensuring they are incentivised to resolve matters.
Arbitration
A private dispute resolution process whereby the parties jointly appoint an arbitrator (usually specialist family solicitors, barristers or retired judges) to resolve the dispute. Arguments will be put to an arbitrator in a similar way as they would to a judge and any decisions will be binding. As in mediation, the decision will need to be made into an order for court approval.
Private FDR
Taking the place of court-based FDRs but with equal legal standing and higher settlement rates, an experienced family lawyer or judge, chosen by the participants, will hear the case at the time of their choosing. This provides greater control over the process for the parties involved.
In the bleak months ahead, when the nation’s physical and economic health is likely to remain under siege, it would be heartening to think that the trend towards a more conciliatory approach in divorce proceeding will continue, reducing stress and trauma for the parties involved.
