Divorce cases are stressful enough but during the Covid-19 outbreak lawyers across the country, indeed across the world, have been developing new and extended techniques for dealing with remote cases.
As it became obvious that more and more courts would be closing throughout the land, fear has struck into the hearts of many practitioners as to how this might work. However, needs must, and solicitors have now expanded the way they used to work into the remote field.
In this article I investigate some of the ways that are now developing to allow parties a different way of dealing with their cases now that they simply cannot go to court.
This has been one of those areas of law that can either work well for some where they trust each other and expect that they have both made proper disclosure and have a genuine desire to come to a conclusion. In the virtual world, new and what is known as “hybrid” mediations are now developing.
What lawyers are now seeing whether they are solicitors or barristers or indeed Judges, is that the old straight jacketed models can be developed and moved forward to take into account that not everybody can work within the old structures. The downside of each of the aspects that I look at this article are being stretched to work in the new lockdown circumstances. The normal mediation used to work with both parties making disclosure to a mediator who then would help them to come to a decision. In hybrid mediation they have added a new layer of support by allowing lawyers, ie solicitors or barristers to assist the parties during the period of mediaition.
This has sometimes been a setback in normal mediation. In remote hybrid mediation, the parties feel that they can negotiate in a safe way with the lawyers being involved with the mediator and this is now becoming an affective new model. In this case, the parties will through their lawyers, speaking remotely or through direct contact with the couples themselves with the mediator, be able to reach conclusion through remote services.
2. Certainty Project
There is a new other issue development which has been called the “certainty project” approved by mediators and arbitrators alike. In the certainty project, the two parties will agree with their solicitors to appoint an arbitrator. The arbitrator will set out the forms that the parties need to complete and the parties will agree what is known as an “asset schedule” of what the assets are.
The idea of this project is to combined the services of mediators and arbitrators so that there will be certainty. We are advised that this kind of service has an end game in sight but both parties must again wish to cooperate in coming to a conclusion and it will always help in cases where there is either one person who had a solicitor or both. It does not seem to be appropriate whether neither party have any lawyers.
The difference in this project is that solicitors are helping their clients to fill in the key documents as they are best at doing this but it then goes forward either to arbitration or with assistance of a mediator. The advantages are that the timing of it can be fixed around the clients and speed can be of the essence particularly in these difficult times.
3. The Divorce Surgery
The third method that is now developing is what is known as “the divorce surgery” where there is one couple and one divorce lawyer. This means that it differs from the court process or even from what is known as a “private FDR” where couples will have the ability to receive an impartial advice by a barrister given to both of them in a written opinion where both parties share a very low fee.
There has been safeguards in these kind of matters ie that there should not have been serious domestic violence or any particular argument about a clash of jurisdiction. The barrister giving the opinion will not draw up the final order which will have to be affected by the solicitors themselves, but any questions can be put by the couple to the barrister.
This procedure has the effect of giving a decision to both parties who might have been confused at the differing advice that otherwise they might be given. These kind of opinions are very quick and can be given in the same way as a normal barrister’s opinion but the difference is it gives the parties something to work for to go either into negotiation or a roundtable meeting or ignore the advice altogether but it will help some parties to both reach a decision quite quickly if they rely on the advice that is being given.
The parties can choose their own barrister if they so wish and provided that the barrister is signed up to the procedure and duly certificated then they will receive the help that they need. The most important part of this procedure is that the parties are given a chance to reflect and it takes away the pressure of being at a formal hearing.
4. Arbitration remotely
This kind of arbitration is really being advocated by several barristers who are indicating that now that the courts are in virtual lockdown, that these new ways have to develop. One obvious problem with arbitrations in the past as they had only been taken up by a small percentage of people is that the decision of the arbitrator is final. However now that we are aware that the courts are not workable in the main on video, and therefore many cases are being adjourned, the use of arbitration and support for it has now become very strong.
According to Chris Pocock at 1 Kings Bench Walk, Judges and others are now fully supporting the idea of arbitration in ways they never have because not only can arbitration deal with final hearings that otherwise cannot be heard by the Court in a sensible way, but can deal also with smaller and discreet issues.
For example arbitrations can be dealt with very quickly and say if there are problems during this lockdown over: –
- Are the parties going to allow the children to visit? These can be dealt with by a discreet arbitration point.
- How are the parties going to deal with the chattels that normally the courts won’t deal with?
- They can decide how long the maintenance could last for if they have agreed on everything else and there is disagreement on that one point or how much it should be.
- To convert the matter to a adjudicating as a Judge at a final hearing to l deal with all of the issues. If the parties are stuck on one or two points then arbitration can assist very helpfully in dealing with all sorts of single issues for example interim maintenance. This is where a party is not being paid by their partner and would normally apply to the court for some kind of sensible interim provision pending a final hearing. Due to the new flexible arbitration process, it can deal with all of these issues quickly so that parties are not left without resources or help.
- Similarly, they can deal urgently with issues concerning who should remain in the home particularly at this difficult time.
5. Private FDR’s
Under the normal court process there are several stages before the parties get to a final hearing. There are preliminary hearings where the courts will give directions known as First Appointments or secondary hearings that are “without prejudice” known as FDR’s or Financial Dispute Resolution Hearings where Judges will try to knock heads together to help the parties reach settlement. In this new lockdown era, the advent of Private FDR’s taken out of the Court system so that the parties appoint Judges jointly between them and have their barristers and solicitors appear on their behalf, are becoming very popular indeed.
The private FDR’s are very similar to ones in Court but in this new remote era parties should be aware that any risks of the parties still living in the home together should be ascertained by the solicitors before there is such a hearing so that there will not be a risk of the parties being in the next door rooms and being subject to pressure from one or the other. It is vital in this new era that the parties should be prepared and told what will happen so that this takes away the risk of any time being wasted by having a last minute conference with the barrister to waste the day.
The parties and their barristers should arrange a schedule so that everybody knows when their breaktimes will be and where the clients wish to contact their lawyers regarding any negotiations. They will have alternative methods for doing so by What’s App, text etc. It is vital the parties should agree on where everyone will be and exactly how the hearing will take place together with the Judge so that people are on exactly the same page. Working remotely can be difficult if parties aren’t aware when they should be having breaks or if one of the parties has decided to leave the room and switch off altogether.
There has to be a brand-new protocol and barristers and Judges, have been helpful in giving indications of what are the downsides and upsides of these kind of procedures. They have indicated that it is very important for parties to agree a schedule of assets ie what assets are available and where they disagree about these rather than having lots of different asset schedules which causes a problem in some matters to the Judge.
There has also been disagreement between some Judges whether it is better at these hearings to give a bracket of what the likely outcome it should be and the strengths and weaknesses or whether to give a precise figure. Many barristers believe it is important to give a precise figure to promote settlement. Others believe that it will cause parties to fall out at a very early stage and walk away from the process if there is too a discernible a decision. From my part I believe it is very important if you have signed up to a private FDR that you should trust the judgement and that you are there to hear from a private Judge and therefore should accept what is being said. It is also a tool for barristers and solicitors to let clients know the reality of unrealistic expectations.
What is important when you are dealing remotely is to make the most of technology. Solicitors who have been used to dealing with paper are really struggling about this at the moment. But it is vital if the Judge is going to deal with matters, they have a sensible electronic bundle that they can read and not lots of bits of PDF’s sent to them that will lead to chaos. It is also important that the couples are signed up to Zoom etc and lawyers can ease the process for the clients by explaining this all to them sensibly and calmly so that even those not used to technology can learn and be invited.
6. Remote Final Hearings
There are some Judges that are still dealing with cases but remotely. In such hearings evidence is given by the parties but in a remote setting. In these circumstances it is vital that safeguardings are undertaken to ensure that there is no duress being brought by anyone in the household and that clients aren’t suddenly finding that someone else is sitting in the room when they are giving evidence.
All parties have to confirm that there is no one else present in the room with them when they are giving such evidence. This is to stop any form of duress. Clients are allowed to communicate with their barristers at breaktime but please be aware that clients will not be able to discuss their evidence during remote hearings with their lawyers by text or chats etc whilst they are giving their evidence. To do so would clearly breach the Rules and would cause both them and their lawyers to be in serious breach.
Any lawyer caught remotely advising their clients during the course of their evidence could face being struck off. It is vital in this day and age of remote hearings and remote messaging that parties are very clear that the structure of the court system in giving evidence on oath will still continue, notwithstanding that the parties are doing this from their own homes.
7. Children’s Arbitration
In terms of children’s mediation and arbitration this is absolutely vital and today there was an announcement made through Janet Bazley QC of 1 Garden Court that the law in relation to children’s arbitration has now been extended so that people who want to deal with cases involving taking children abroad (albeit with huge restrictions during the lockdown) can now have arbitrators deal with these issues for the first time. Children’s arbitration when remotely carried out is really vital at this stage when there are so many issues that must be determined to protect the children.
Working remotely private social workers are being brought in to assist the arbitrators at this time so that there is no need to have an officially appointed Cafcass Officer with all the delays that this would normally involve.
Covid-19 has brought serious distress to many people but for some it is a chance to deal with matters in a different way that may become the norm when all of this over. Anything that can assist clients to speed up their cases or deal with them in a different way to avoid the delays of court hearings which are being abandoned every day, is vital to the wellbeing of so many.
Learning about the specific barristers and chambers who undertake such work is vital and if you have any problems regarding this or wish to know more, then please contact this firm today.