ADR in family law post-COVID-19 pandemic

All the way back on 8th January 2021, Sir Andrew McFarlane released “The Family Court and COVID-19 | The Road Ahead 2021”. During this time, there was a growing consideration in respect of hybrid working and the workloads of judges up and down the country.

Practitioners working within family law witnessed first-hand the impact of covid upon their work, wellbeing and progress of their cases in the court system. Notwithstanding this, it is undisputable that the courts, including the judiciary and court staff as well as professionals and clients, all adapted well to the challenges.

In the Road Ahead 2021 document, the President referred to his previous document in 2020, which outlined the volume of work for the courts being “very high” and in the 2021 document, the President comments at paragraph 12:

“The pressure of work in the courts, and the backlog of cases, are matters that concern the system as a whole. They will not be resolved by individuals working beyond reasonable capacity, but by increased resources and strategic, system-wide changes in the way cases are dealt with.”

In recent times, practitioners are seeing an increase in in-person hearings, although remote hearings and hybrid hearings continue to exist and will always have a role to play for certain types of hearing, to be considered on a case-by-case basis. Putting the pandemic to one side, the courts have also been under pressure for some time, arguably since April 2013 in the aftermath of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), where the stresses on the court system started to become even more apparent when many individuals were prevented from obtaining legal aid for court proceedings, together with many other consequences of this legislation.

In addition to the pressures the courts have faced for many years, the COVID-19 pandemic hit the court further. Due to the stresses of the court system in England and Wales, alternative dispute resolution such as mediation, arbitration and private FDRs are often looked at and considered by practitioners. Forms of ADR bring about benefits and ADR has an important role to play in family law. For example, Rule 3.3 of the Family Procedure Rules states:

The court’s duty to consider non-court dispute resolution

3.3

(1) The court must consider, at every stage in proceedings, whether non-court dispute resolution is appropriate.

(2) In considering whether non-court dispute resolution is appropriate in proceedings which were commenced by a relevant family application, the court must take into account –

(a) whether a MIAM took place;

(b) whether a valid MIAM exemption was claimed or mediator’s exemption was confirmed; and

(c) whether the parties attempted mediation or another form of non-court dispute resolution and the outcome of that process.

And 3.4 states:

3.4

(1) If the court considers that non-court dispute resolution is appropriate, it may direct that the proceedings, or a hearing in the proceedings, be adjourned for such specified period as it considers appropriate –

(a) to enable the parties to obtain information and advice about, and consider using, non-court dispute resolution; and

(b) where the parties agree, to enable non-court dispute resolution to take place.

(2) The court may give directions under this rule on an application or of its own initiative.

(3) Where the court directs an adjournment under this rule, it will give directions about the timing and method by which the parties must tell the court if any of the issues in the proceedings have been resolved.

The pandemic has enhanced the reputation relating to the benefits of ADR for practitioners working in family law. In respect of cases within the court arena, many practitioners note the differences between regions in respect of the availability to list hearings and the consequential delay. Some courts are busier than others are and with the increase in remote working post-COVID-19, it is easier to bring people together “virtually” for the purposes of ADR as an alternative to pursuing litigation in the courts.

The biggest advantage of ADR post-COVID-19 is the ability to fix appointments at short notice whilst taking into account the availability of all the relevant people, avoiding delay and ensuring privacy remains. Professionally, one big advantage of ADR is that it can be utilised for a wide range of cases and parties can work towards a budget. The myth that, for example, private FDRs are only for “big money” cases I hope no longer exists. Clearly, in smaller financial remedy cases, the use of ADR could work out as cost-effective whilst preventing delay. The parties involved in the process retain a power to agree a budget, the timing and form of the ADR process as well as choosing who will be the mediator, collaborative lawyer, arbitrator etc.

In practice, we often hear that the courts are dealing with a backlog of cases and this is where practitioners are able to consider ADR as a solution to securing a resolution. Family lawyers have proven their ability to adjust well to circumstances post-pandemic and practitioners have embraced the benefits of remote working. These skills, together with the many advantages of ADR, creates a great opportunity for those seeking a resolution to family law matters. Of course, ADR does not have to take place remotely – it can be in-person – but it taking place remotely may be an attractive feature to some where other courts are moving more towards in-person hearings.

There is no one size fits all approach, there are advantages and disadvantages to all different types of ADR as well as the court process. However, it will be interesting to see the development and popularity of ADR in the years to come, particularly in the present aftermath of the COVID-19 pandemic.