Expert family lawyers are urging couples to consider alternative dispute resolution (ADR), such as mediation, amidst a backdrop of courts still overwhelmed by delays caused due to the Covid-19 pandemic.
According to The Economist, it now takes an average of 40 weeks to resolve a private dispute involving children. The court service estimates the backlog will mean that it will take until 2023 for it to return to normal levels, leaving families in limbo for years to come.
The recommendation for ADR comes after Irwin Mitchell’s family law team have seen courts being delayed even further by staff having to isolate after coming into contact with positive Covid-19 cases.
But so-called ‘friendlier’ ways to resolve family disputes such as mediation for divorce or child contact arrangements could be the answer to having cases sorted more quickly.
A survey by OnePoll, commissioned by Irwin Mitchell, polled 1,000 divorcees about their experience getting divorced and whether their relationship ending had been an amicable situation, in a bid to see how widely known alternative dispute resolution (ADR) was.
Over a third (37%) said divorce was more expensive than they expected while over three-quarters (77%) found their divorce proceedings stressful. Court backlogs can add additional pressures on both of these factors, as disputes are left unresolved for months on end and solicitor fees spiral.
It’s only in the rarest of cases that the costs for finalising the case, such as barristers’ fees already deemed payable, are refunded to clients when a case is cancelled at the very last minute by the court.
35% weren’t offered ADR as an alternative way of resolving their divorce, suggesting there’s still some way to go on the uptake for family law cases involving children, property and other assets – with the former particularly being affected by any delays in the courts.
Ros Bever, head of family law at Irwin Mitchell said:
“As the courts struggle to get back to ‘business as usual’, it’s important that people consider alternative ways to resolve their dispute – not only could it be a quicker way to sort their problems, it could also be cheaper, and it would lessen the burden on the family courts. ADR such as mediation and arbitration can help families or couples reach an agreement much more quickly in many cases.
“Sadly we’re seeing instances while the vaccination programme is still ongoing where family courts are having major issues with staff needing to isolate and cordoning off areas of the courts that have been affected by positive Covid-19 cases.
“But while people double-vaccinated no longer have to self-isolate, the damage has already been done and the knock-on effect means cases have been waiting for their time in court for months on end, only to have them cancelled at the last minute. Parents and their children have been left waiting months or even years to find out custody arrangements, while some financial cases are in complete limbo.
“Clients have been waiting for too long, and unfortunately the pandemic is still exacerbating this while the backlog grows even longer. We need to think about other solutions if we’re to help our clients to resolve their issues as quickly and smoothly as possible.”
The ADR survey was discussed at a recent roundtable, hosted by high-profile legal commentator Joshua Rozenberg and Irwin Mitchell including former Supreme Court judge Lord Nicholas Wilson; barristers and specialist arbitrators Nicholas Allen QC and Janet Bazley QC; Family Law in Partnership’s Gillian Bishop, and Director of Legal Services (Family) at Irwin Mitchell, Ros Bever.
During the roundtable, Lord Nicholas Wilson commented that “the [court] delays mean extra expense for your lawyer and the other side’s lawyer”, while Nicholas Allen QC said “we have reached a tipping point in respect of non-court resolution”.
ADR has grown in prominence recently; the Ministry of Justice recently launched a trial for mediation vouchers to be used, which gives couples a £500 voucher to put towards mediation services.
Meanwhile the Civil Justice Council’s ADR report on how mandatory ADR is lawful marked a positive step towards making other methods such as mediation and arbitration the standard in family law cases.
You can read Irwin Mitchell’s full report on ADR, ‘Divorce – Let’s do it differently’, here.
