A week ago I was on a Zoom webinar with the Lord Chief Justice Baker and the retired President of the Family Division, Sir James Munby, amongst others on the topic of arbitration. Essentially, the great and the good of the family law world were all gathered together in my front room for a discussion about how viable it is to now use arbitration or other dispute resolution alternatives.
The reason? Because the lockdown and the need for social distancing are causing an unprecedented build-up of family law cases. Many cases that are actually hugely urgent are being adjourned. We are all waiting with bated breath for the Government to tell us what the plan is for us to come out of lockdown, but the reality is we will be social distancing for quite some time. That makes court work very difficult – for a starter, the courts buildings are not designed for this crisis. The District Judge’s rooms are generally not remotely suitable. For this reason, and rightly so, only the most important cases such as public law and domestic abuse matters will be prioritised and heard in the larger courts available. This means that all other cases will have to wait for what could be a very long time.
So the main point of the webinar was to underline the importance of arbitration and other dispute resolution options to help clear the backlog and something which the senior judiciary are forcibly encouraging– particularly in private law children matters where the argument is usually a direct disagreement between two parents and shouldn’t really be a matter for the court in any event.
What are the alternatives? Arbitration, mediation, early neutral evaluation or private FDR’s – there is a variety of routes available and all of them lend themselves well to taking place via video conferencing so can be progressed now. As one of the very few practising solicitors who sits as a district judge, an arbitrator and a mediator and has seen and participated in all processes at first hand, my money is on early neutral evaluation being the way forward. It’s still relatively new but it provides a neutral indication of what the likely result will be in court and especially helpful if there is a disagreement early on. That might break a deadlock and persuade warring parties to come to an agreement avoiding painful and costly court proceedings quickly.
If that’s the outcome then bring on the next Zoom – I’m ready for it.