COVID-10 and Remote Mediation

By Kirstie Law, Partner at Thomson Snell & Passmore

COVID-19 has had a significant effect on the court system. Whilst it has for years been possible to deal with the divorce paperwork online, the procedure for dealing with financial and children issues has historically required both parties to attend hearings. Nobody had anticipated that there would ever be such a huge demand for online hearings. The court system is now urgently trying to move to a process that enables the majority of hearings to take place remotely. Unfortunately this is going to take time and in some cases, e.g. where there are several witnesses, may not be practical.

Inevitably the hearings that will be given priority are situations where a child or adult is at risk of harm, with the result that public law hearings are likely to take priority over private law hearings over the next few weeks.

Several people who have waited months, or even years, for a hearing now find themselves in limbo. They are waiting to hear from the court with a new hearing date which could be many months away having already in some cases, spent tens of thousands of pounds getting a case ready for trial. This applies to both children and financial hearings.

The current situation does however provide the opportunity for former couples to see whether they can resolve their differences without a judge deciding the issues for them. There are several options.

It is now possible to mediate online, using for example Skype, enabling both parties to see each other and the mediator to see both of them. This enables the discussions that would have previously happened around a table to still take place. For people who were previously concerned about the prospect of being in the same room as the other party, they may find mediation via video link preferable.

Mediation does require the couple to work together with the assistance of a mediator to try and find solutions that will work for the whole family going forward. We find it has a high success rate, over 90%, in respect of both children and financial issues. We would therefore encourage people in these times to consider mediation.

If you are in the middle of trying to resolve your financial issues, either within the court process or not, you may like to - or now have to - consider alternative options to going to court. Other options to consider include holding a private FDR remotely where an experienced barrister (this may be someone who works as a judge as well) will consider the proposals that you have both made and give an indication as to what he or she thinks might be a sensible solution. It is hoped that such an indication will encourage settlement avoiding the costs of a trial at a later date.

There is also the option of attending arbitration whereby a qualified arbitrator (again this may be someone who sits as a judge as well) will actually hear the evidence, potentially remotely or at their chambers with facilities enabling those present to socially distance. The arbitrator will decide the case in the same way as a judge would and his/her decision is binding.

Although a private FDR judge or arbitrator will charge for his or her time, whereas there is no additional charge for a judge to deal with a hearing at court, you do need to bear in mind that you will potentially save significant costs arising as a result of the current delays, including for example having to update property and business valuations, pension reports and financial disclosure.

If you are in limbo and waiting to hear from the court, whether it is in respect of arrangements for your children or financial issues, then the Family Team at Thomson Snell & Passmore will all be happy to speak to you about your case and discuss what options might be appropriate to try and progress the case now.