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‘Don’t wait for the right opportunity; create it.’ George Bernard Shaw

By Fiona Farrell, Family Law senior associate at Irwin Mitchell

2020 will be remembered not only for the immense challenges and changes to our working practices as family lawyers but also our creativity and innovation.

Between implementing homeworking polices years ahead of strategic plans to adapting to new platforms and ways of collaborating, the legal market as a whole has had to innovate in order to survive the unprecedented changes to our working practices.

Clients are also thinking differently; efficiency and commerciality are the key ‘takeaways’ with client service and responsiveness being the order of the day.

The family court system in particular, which has historically been reticent to change, has been forced (at times kicking and screaming), into a whole new world of remote and paperless working which has tested the resource and the resilience of the court system to its core.

In terms of the family court’s journey through COVID-19, Sir Andrew MacFarlane set out the strategy for the courts in his ‘Road Ahead’ document which in effect seeks an overhaul of the family court so as ‘to achieve the fair determination of the very high volume of cases within the family justice system, with radically reduced resources in sub-optimal court settings’.

It is no easy task achieving what client’s seek in terms of an efficient and cost effective handling of their matters within a system that, despite its best efforts, is struggling.

The ability of the court to adapt during the COVID crisis has been staggering albeit its success has been patchy and at times inconsistent.  A significant success of 2020 for the family courts must be the use of the online divorce and consent order portals, which has seen the increasing efficiency in the progression of divorce proceedings and the approval of agreed consent orders. 

Remote hearings have worked and judiciary and advocates alike are now well-versed in the use of BT Meet Me, Skype and Zoom for conferences.  Routine directions hearings and dispute resolution hearings have worked well utilising these platforms despite initial reservations.

Where final hearings are listed, however, there has been a more inconsistent approach between the local courts with some favouring remote or in person hearings (if possible) or some courts simply adjourning matters indefinitely and encouraging alternative dispute resolution.  

Where family lawyers have sought to innovate in 2020 is the increased use of ADR. Initially this may be have been more out of necessity than choice, when the court of its own volition adjourned most final hearings in March and April. Increasingly, however, practitioners are seeing the benefits themselves in terms of cost and time savings and the efficiency and consistency of approach of appointing arbitrator to resolve the dispute.

As Lady Justice King stated: "There is a common misconception that the use of arbitration, as an alternative to the court process in financial remedy cases, is the purview only of the rich who seek privacy away from the courts and the eyes of the media. If that was ever the position, it is no more. The court was told during the course of argument, that it is widely anticipated that parties in modest asset cases (including litigants in person) will increasingly use the arbitration process in the aftermath of the Covid-19 crisis as the courts cope with the backlog of cases, which is the inevitable consequence of "lockdown"."

It goes without saying that it is of the utmost importance that potential users of the arbitration process are not deterred from using this valuable service; either, on the one hand, because the outcome is not seen as sufficiently certain or, on the other, because arbitration is regarded as providing no adequate remedy in circumstances where one of the parties believes there to have been an unjust outcome.

The timely Court of Appeal decision in Haley v Haley [2020] EWCA CIV 1369 has sought to give further weight to the use of arbitration by resolving the conflict between the previous ‘absolutism’ of judgements with little to no scope to appeal to now put arbitration appeals on the same footing as those of the court.

In a year of unprecedented change, we, like the courts, have to adapt ours and our client’s approach to dispute resolution as quote simply the court system is no longer the only or most efficient of forums.

It is not desirable for clients in terms of time, stress and costs to be left in limbo. It is therefore incumbent upon us to also innovate and make better use of the options that are available, whether judicially encouraged or not.