Alice Scambler, Partner in the Family Law Department of Thomas Mansfield Solicitors, has featured in the Solicitors Journal reiterating the advantages of the alternatives to courts. As a qualified solicitor and mediator, Alice advocates for out-of-court solutions as much as possible, and especially in cases where children are involved. In her article, she points out multiple benefits of mediation and also explains what to do if it is not appropriate. “Whichever the alternative,” says Alice, “it needs to be taken seriously, as the problems faced by the family courts are going to remain for the time being.” Please read below the full article that was first published in the Journal in July.
Family Court quarterly statistics: a call for alternatives to courts
The pandemic and associated lockdowns have led to an increase in reports of domestic violence and relationship breakdowns. Family practitioners have noticed a surge in enquiries, and this is reflected in the courts. “The volume of work is simply overwhelming,” commented Rt Hon Sir Andrew McFarlane, president of the Family Division.
On 24 June 2021, this increase was confirmed by the Family Court Statistics Quarterly report which makes for an alarming read, considered in light of McFarlane’s statement: “[C]learly the pandemic has made things harder, but we were already overrun”.
71,707 new family cases were issued between January and March 2021, a 7 per cent increase compared to the same period in 2020. The most significant increases were in financial remedy cases (29 per cent) and domestic violence (15 per cent). This period coincided with the third national lockdown; although, unlike during the first lockdown, the courts remained open.
The courts have adjusted to a remote system and assisted by the Nightingale Courts, a steady recovery of cases has begun. Hearings by video and telephone have become the norm. Although there are benefits, these cases have not been generally as successful, and feedback from parties has been that they felt removed and distanced.
The Nuffield Family Justice Observatory consultation on this issue found almost half of people attending remote hearings had not fully understood what had happened, and many respondents expressed concern about the difficulty of ensuring the process is “fair and just”. One magistrate reported: “I find it very difficult to get a proper grip on the case without seeing the parties”.
Another concerning issue within the quarterly statistics is the impact on case timelines, particularly in care proceedings. Private law cases have also suffered, taking on average 40 weeks to reach a final order, up by 10 weeks from 2020.
In some areas it is expected parties will soon be waiting 26 weeks to first hearing, and 2 years to final hearing. It has become commonplace for hearings to be adjourned, frequently at short notice, and at significant cost to the family, who have no realistic route for compensation.
Alternatives to court
It has never been more apparent that the court should be treated as a destination of last resort – the legal version of A&E. But where does this leave us? What are the alternatives?
By launching the ‘£1 million voucher scheme’ in March, the government made it clear mediation should become the go-to option for family disputes. The scope of the funding is limited, with just the first 2,000 families given £500 towards their mediation, but the investment has been welcomed by the Family Mediation Council.
Mediation remains one of the few areas where legal aid is available. The benefits are not simply limited to costs and avoiding the court room. There are few options that enable participants to ‘own’ their situations and feel in control of their own outcome.
In its usual form, mediation may not be appropriate in every case, and so family solicitors and mediators are increasingly looking to the commercial world to improve the scope of available options.
Hybrid mediation is a good example. Incorporating many of the features seen in civil mediation, it enables each party to bring their lawyer into the process, giving more flexibility and creativity. Similarly, collaborative law remains an option where parties want to resolve matters between them, but seek the guidance of their own lawyers.
The recently created Certainty Project combines the certainty and timescales of arbitration, with mediation’s potential for self-determination. The participants commit to an arbitrator, who then adjourns the matter of mediation. If the parties are unable to reach agreement in the timeframe, the matter is arbitrated.
This skilfully avoids the draw of court proceedings where timetables are a concern, and focusses the minds of those involved. For cases where the animosity runs high, and mediation is unsuitable, arbitration is an increasingly popular option in family cases.
Whichever the alternative, it needs to be taken seriously, as the problems faced by the family courts are going to remain for the time being. As noted in the quarterly report, “[i]t may be some time until improvements as a result of recovery measures taken begin to show”.