The Family Courts are stretched beyond capacity with hearings often being taken out of the court list on the eve of a hearing and adjourned to a date many months down the line. Against this backdrop lawyers and their clients are increasingly turning to Alternative Dispute Resolution (ADR).
ADR, such as mediation, has been available for many years and works extremely well in cases where both sides want to work towards a resolution, but it doesn’t suit cases which are likely to be hard fought. The court system was already bursting at the seams pre-pandemic, but can now barely cope with more litigants in person overloading the system, court buildings being sold off, and the prospect of becoming a judge being less and less attractive.
Private arbitration has been available for quite a few years, but it has only recently become an option which people have taken up in any great number. To start with, people were loath to pay for an arbitrator, effectively a private judge, when a full-time judge was available for no cost other than the court fee.
While those of more modest means may still choose to go through the court process, it is not uncommon to receive an email from the court on the eve of a final hearing to say that it is being ‘vacated due to a lack of judicial availability,’ and being told that the court will be in touch with a new hearing date as soon as possible. In that situation, one has the choice of either waiting for a new trial date which could be in six months’ time or making phone calls straightaway to find an arbitrator available to hear the case. As well as the obvious stress of having a case pulled at the last minute, there is also the additional cost if a case has to wait many months for a new hearing date.
While arbitration isn’t cheap, it is money well spent. It offers a great deal more flexibility, it guarantees a judge that both sides have picked and will be known to be an expert in the field. An arbitrator will be able to give far more time to a case than an overstretched judge. They will be an experienced barrister or solicitor, with the occasional retired judge also offering the service. Many of the barristers and solicitors who are arbitrators, also sit as part-time judges.
In financial cases, part of the court process is a Financial Dispute Resolution (FDR) appointment. This is a hearing before a judge (who has no other connection with the case) and wherein that judge gives a view as to its outcome, if they were hearing it, based on a fairly short presentation of the case. If it is dealt with by a court-based judge, the judge will have little time to read into the case and may only be able to afford one-two hours of their time for the hearing in a busy court list. Negotiations have to take place at court, and many court buildings are in a state of disrepair.
This has led to an increasing use of private FDRs. There is a large take-up, with the cost again being money well spent. On a private FDR, one can be certain that the private judge will have read into the case and they will be available all day to assist the parties. The private FDR will take place in a barristers’ chambers or solicitors’ office where each side will be guaranteed their own room, refreshments and the knowledge that it will not be rushed. The vast majority of private FDRs result in a negotiated settlement.
While clients may balk at having to pay for arbitrators and private judges, and the accusation of a two-tier justice system, their use is increasing in cases where clients can afford the costs. Other than the expense, the only reason not to want to go down the private route tends to be if delay suits one party.
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The Family and Divorce Team at Bishop & Sewell have a wealth of experience in dealing with divorce and separation, including all financial aspects.
The above is accurate as at 31 January 2023. The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis.