Why Mediation?

A huge backlog of family cases, increased by lockdown, is just one of many challenges facing family lawyers.

State of the courts

For many years regional family courts have suffered from lack of investment, with many closing down and the remainder manifesting ‘squalid conditions’, according to one family law barrister. With hearings now being held remotely, there is a concern that the move online will hasten their deterioration or demise.

Although judges and counsel have, by all accounts, adapted well to using Skype or Zoom – and when all else fails the phone – to conduct hearings, there are fears that the right to access to justice enshrined in the Human Rights Act is being compromised.

Urgent child protection cases are now being prioritised, as the court system is processing significantly fewer cases per day. Even before lockdown there were lengthy delays to hearings, due to underinvestment and the proliferation of litigants in person following cuts to legal aid. Now, more than ever, family solicitors have experienced a surge in demand for private financial dispute resolution (FDR) and arbitration. Proponents of FDR argue it has the advantage of cutting delay and minimising the strain on families of drawn-out litigation, presenting the opportunity for parties to identify and resolve conflicts with the assistance of a judge or a specialist family solicitor. FDR has been endorsed by the former president of the Family Division, Sir James Munby, and has a high settlement rate.

What is being heard

‘The courts can be a cold, clinical environment for clients,’ observes Andrew Newbury, partner at Hall Brown. ‘Many clients prefer to do an FDR in the comfort of a solicitor’s office or judge’s chambers.’

The profession is finding other ways to circumvent court delays and the uncertainty over fair outcomes. Withers recently established a ‘separation model’ to help couples find a solution without going to court. This aims to ‘remove the conflict, polarities and positional offers of the court system and give couples the proper headroom to negotiate a realistic solution’, according to Suzanne Todd, head of the firm’s divorce and family team in London. However, these private arrangements are only practicable for those who can afford them and are therefore out of reach for many litigants.

Another option that has surged in popularity since lockdown is the online divorce, which has been available for parties acting in person since May 2018 and for use by legal professionals since December 2019; constituting a means by which parties can receive a decree nisi seven weeks from filing the initial petition.

Future landscape

The easing of lockdown will be a relief for everyone, but in particular couples who are in the middle of a divorce but stuck in the same residence.

‘Lockdown with the partner you are divorcing is emotionally and practically challenging,’ says Gordon. ‘Remote hearings are being held with both parties in the same house. Clients have to speak from the greenhouse or the car to obtain legal advice without being overheard.’

Practitioners are expecting a surge of divorces after the imposed proximity of lockdown, in line with the increase of work following summer and Christmas holidays. And the upheaval of Covid‑19 aside, the implications of Brexit are still to be tackled, as questions remain about the position of reciprocal arrangements regarding the custody of children.

‘At the moment, the impact of Brexit on these rules is impossible to predict,’ says Claire Blakemore, a partner in Withers’ divorce and family team.

As in so much else, the future can rarely have been so uncertain.