With ever increasing divorce cases coming before the Courts, the lack of Judges and lack of court time the system has been grinding to a halt. Like every area of public services, the court system has been and will continue to be hit by Government cuts. Legal Aid funding has virtually disappeared under this Government which has the inevitable effect of clogging up the Courts still further with Litigants acting in Person. Hearing dates are getting further and further away leading to frustration and deep unhappiness with the system.
On 6th April 2011 the Government will be introducing a scheme whereby parties will have to attend a mediation session to consider mediation but there are fears that this is just sticking a plaster over a gaping wound.
Collaborative law that started so well whereby the parties sign up not to go to Court and to attend as many sessions with their divorce lawyers to reach agreement has not proved to be as popular as expected. The clause in the scheme that the lawyers must withdraw from their case if they cannot settle the proceedings outside of the Court, has led to many clients failing to take up this option. In fact what has transpired from many of these cases is that the parties wish to hear from a Judge or independent third party what the outcome should be.
Mediation works in a limited number of cases where both parties wish to mediate but again one of the pitfalls of mediation has been that the parties have had to attend on their own before the mediators and for some they have claimed that they feel that they are alone there and vulnerable.
With that in mind, Barristers Chambers and Solicitors have been working on developing a scheme that will obviate some of the previous worries and Lloyd Platt & Co together with Barristers Chambers, 29 Bedford Row, the Chambers of Nicholas Francis QC are now undertaking fast track divorce hearing schemes that are private in nature. This allows a fast track way of getting to a hearing before a Judge (or senior specialist in this capacity), than is available through the traditional court process for resolving financial disputes on divorce. In order to understand the huge benefits of this new scheme, one has to understand the current scheme.
The Court based system
In the current Court based system there are usually three hearings. A First Appointment followed some months later by what is known as a Financial Dispute Resolution Hearing (FDR), if matters do not settle this will then proceed to a Final Hearing. A First Appointment deals with directions for valuations, for further disclosure, but the more important is the second, the FDR. This allows the parties to negotiate at Court. Prior to this hearing, the parties would have provided disclosure of their financial position to enable negotiations to take place. At the FDR hearing the Judge will listen to what both sides say in support of their cases. The Judge will then express their view as to the likely outcome of the case if it went to trial. This will often direct minds and make at least one or both parties review their position and in approximately 85% of cases results in a settlement being reached either at the hearing or immediately after. Most lawyers agree in principle that the Court procedure and the FDR in particular is a very effective means of resolving financial disputes. The problem has been the delay in that in many cases the FDR does not occur until at least six months after the application for finance has been issued. Sometimes Judges have to deal with so many hearings on the same day, that they are unable to give each case the prolonged level of attention of reading that they deserve. This system is going to be further delayed for the reasons that have been set out above.
Benefits of the new Fast Track FDR Scheme
The Fast Track FDR Scheme completes eliminates these difficulties whilst retaining all the positive aspects of the Court procedure.
The Fast Track FDR involves exactly the same procedure as a court based FDR except better. The hearing will take place in a large conference room at 29 Bedford Row. Each party will be legally represented and the Judge (or other Senior Counsel sitting in that capacity) will preside over the hearing in the usual way. The Judge will be one of the Senior Barristers at Bedford Row who regularly sit as a Judge at court based FDR?s. The benefits of this scheme are incalculable for the following reasons namely:-
(a)The aim will be for all the FDR?s to take place within six to eight weeks of the parties agreeing to participate in the scheme. This should reduce delay by at least four months.
(b)The Judge who deals with the Fast Track FDR will give exclusive attention to the case. They will be able to focus effectively by reading everything as opposed to dealing with five or six FDR?s on the same day in the court based process.
(c)The cost of the Judge will be between ?5,000 – ?7,500 plus VAT shared between the parties.
(d)Each party will be assigned their own conference room at 29 Bedford Row to discuss their case with their legal team during the day. This avoids the situation that arises at Court so often where parties have to discuss their cases in crowded court waiting rooms or corridors.
(e)The parties can have as long as they like to negotiate on the day of the Fast track FDR. The Judge will be fully available for assistance with the process as and when required.
(f)This system will accommodate the combination of both the First Appointment and FDR into one hearing, fast tracking the time and disclosure and negotiations.
(g)The parties will be given a definitive opinion by the Judge to assist them in reaching agreement. The surroundings will allow the parties to draw the final Orders and have them typed there and then for signature.
For the scheme to work effectively, both sets of solicitors must fully understand the objectives and be in a position to deal with the steps efficiently and swiftly particularly in relation to drafting the documentation properly. Lloyd Platt & Co will work regularly with other solicitors who have the same ethos including Neil Russell at BD Laddie and other firms who are expected to use the process. Lloyd Platt will have worked with these firms on many cases in the past and know that they will be able to provide the level of commitment necessary to ensure the efficient operation of the scheme. Other firms can of course use this scheme.
The costings in relation to this are at the normal hourly rate which will vary depending on the charge out of the firms concerned. The scheme will not be viable for the following reasons:-
(a)Where there is reason to believe that one party has failed to provide full disclosure of their financial circumstances and accordingly both parties must approach the case with an open and cooperative attitude.
(b)If one or either party fails to cooperate in the valuation of any properties, assets, companies etc.
There are some of have liken this scheme to travelling club class and will claim that it is unfairly favours the wealthy. However, this scheme will be applicable across the board. The parties could save thousands in avoiding unnecessary correspondence between solicitors and proceedings to the Fast Track scheme. This will have the effect of unclogging substantive numbers of cases from the court system and thereby allowing everything to work more smoothly.
Whilst at the present time the Fast Track scheme only applies to financial disputes, it can equally apply in the future to disputes over children and it is hoped that these forms of hearing will bring quick end to the unnecessary misery caused to both couples and children by protracted proceedings.