Yael Selig Consultant
How best to resolve family disputes during the current Covid-19 pandemic
The way we have been living in the last 10 weeks is not something that could ever have been anticipated or predicted. Even though lockdown measures are commencing to be eased in the oncoming weeks or even months there continues to be uncertainty in everyone’s future.
The reality is that parties in family law proceedings have been experiencing delays. In some cases, unfortunately, the position is far worse and the family courts have adjourned Final Hearings at short notice. This is both in financial and children related cases. In addition, reduced court staff has meant that it is practically impossible to reach the court whether by phone or email. This is extremely frustrating and disappointing for parties who have waited for months for a long-anticipated Final Hearing which would give them the closure and finality they have been seeking.
In one of my matters the Court cancelled the Final Hearing but has not yet provided an adjourned date. As family law practitioners we have a duty to our clients to assist them in the face of such disappointment.
Alternative dispute resolution options
Parties often erroneously believe that they have to go to court when they have not been able to reach an agreement. Now more than ever we at Gordon Dadds encourage parties to pursue alternative dispute resolution options to assist parties to try and reach finality without the need for a Court hearing. This has the added benefit of saving costs if the mediation process is encouraged and commenced early on after the separation. Furthermore, mediation can result in a quicker solution and one in which the clients are in control within a process which is purely focused on reaching a resolution. Mediation can be very adaptable and the parties can create their own timetable to suit them. They can also schedule as many sessions as they may require. Both parties have to agree to attend and this means that from the outset they are keen to make it work. It is in the parties’ interest to work together to try and reach an agreement. It is a confidential and private process and one which is entirely voluntary.
Mediation is a way of resolving matters directly with the help of a mediator. Mediators are family lawyers who have specialist knowledge of the issues involved. The process involves a series of meetings between the parties in the presence of a mediator at a time convenient to both. Each session can be as short as an hour or last up to two hours or sometimes more but again it depends on the parties and the complexities of the issues involved.
In some cases, the mediation may be used simply to deal with a “sticking point” a specific area that has caused controversy between the parties and thereby narrow the issues. Although there is no guarantee that an agreement will be reached Mediation is a highly successful process in the vast majority of cases. However, if the parties are unable to reach an overall agreement they can continue negotiations via their solicitors. In any event, the process may have still helped to narrow the issues to a large extent.
Different mediation models
Any issue can be mediated. It can relate to the finances following divorce or it can relate to the children. There are different mediation models depending on the issues being mediated. Children issues can be mediated within a co-mediator model whilst the Resolution model for mediating financial issues is a sole model.
The role of the Mediator is not to give legal advice but to navigate and guide the parties through the process and assist them in reaching an agreement. The Mediator is impartial and is there for both parties. Although there is no obligation to do so it is important that during the process both parties receive independent legal advice so that they have a sounding board regarding the decisions they are deciding to embark on.
If the parties succeed in reaching an overall agreement on all of the issues it can potentially be made into a binding agreement via the Court. It is important to note that any agreement discussed is not binding upon the parties as it is subject to both parties having independent legal advice. If a proposed agreement is reached the Mediator will prepare the documentation which sets out the proposed terms and provide a clear record of what has been agreed between them. The parties respective legal advisers can then draft the relevant court Order which can then be submitted to the Court.
An added advantage is the cost element. Court proceedings are far more protracted and expensive. Although hourly rates vary between Mediators it is overall a far cheaper and quicker process.
At the moment with the current restrictions, Mediation can take place remotely using one of the video conferencing platforms. This could be Zoom, Microsoft Teams or Skype. Some couples may find this easier and less pressurized than having to be in the same room as each other during such an emotional time.