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Out-Of-Court Resolution: DR in the Corona Virus Environment and Beyond

Date: 27/03/2020 Type: Articles Topic: ADR | Children | Finances | Author: Suzanne Kingston - Mills & Reeve

These are unprecedented times – there’s been an overnight shift to remote working for almost the entire population.Talk is of social distancing but in fact in many instances this has meant greater connectivity as we use a plethora of social media platforms to check in on each other.

We are adapting to a whole new normal – the court system which has remained unchanged for decades is creaking and in many instances no longer available.

This is therefore a time for alternatives to court to come into their own. We are lucky that over the years we have developed a whole range of DR. All of the forms of DR can be undertaken virtually – whether by Skype/zoom/loop up and many accredited practitioners are waiting to help.

We should be thinking outside the box and using if appropriate:

Early neutral evaluation - This term is commonly use for the equivalent to FDRs in children cases. The evaluator (a children expert) will give an indication to guide the parties in the decision they need to make about child arrangements or other children issues

Family mediation - for clients who are able to communicate to an extent and are willing to try to find a resolution to the issues and to make decisions without feeling under undue pressure or coercion, family mediation often works. It usually takes place over a series of meetings, either with the clients together or separately if required. It is also possible to involve children in the mediation with an appropriately trained child inclusive mediator

Hybrid civil/ family mediation - If communication between the parties is tricky, or if the parties need more support, hybrid mediation is a really good cost-effective alternative to court. This usually involves both parties (sometimes with their solicitors) having meetings with the mediator or alternatively the mediator shuttling between the couple

Collaborative - The parties and the lawyers try and reach a settlement by a series of four way meetings using team based approach. The parties agree not to go to court and if they need to use new lawyers. This is an ideal way of negotiating prenuptial agreements in the most client focused way.

Arbitration - the arbitrator (an IFLA accredited adjudicator) provides an award (in financial cases) or a determination (in children cases) as a final outcome providing certainty to the couple. Arbitration can be helpful for the whole case or dealing with discrete issues. Once an arbitrator is appointed, they stay with the case throughout. The process is entirely bespoke and is fitted to the particular needs of the clients. The case can be adjudicated within weeks for speedy resolution.

Private FDRs - The process is the same as a court based FDR, although the practicalities are arranged at the convenience of all and the FDR The process is the same as a court based FDR, although the practicalities are arranged at the convenience of all and the FDR “judge” Will always give their indication of the likely outcome of the matter in dispute

I know from my training and teaching across the world that we are at the cutting edge our DR offerings.

There are always creative new options bringing up as well – to name a few- The Divorce Surgery; The Certainty Project as well as imminent change the Arbitration Rules in children cases to allow relocation of children (whether temporary or permanent) to certain jurisdictions.

I am delighted to be chairing the HNW Virtual conference on Virtual DR on 6th April. We will be looking at best practice for virtual DR as well as sharing our tips and considering traps and pitfalls to avoid. You will have the opportunity to listen to practitioners with years of experience of virtual DR and learn more about the new innovations springing up.

Look forward to seeing as many of you as possible then.

Until then stay safe and well.

Suzanne

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