COVID-19 EXPERT LEGAL INSIGHTS

Resolving family disputes through mediation, arbitration and private FDRs during the coronavirus crisis

3 April 2020

The COVID-19 crisis has brought about some of the biggest challenges to our lives, health and freedoms that many of us will ever experience. The pressures we face are significant while we also do our best to manage the impact on our relationships, mental health and financial circumstances.  It is important that we all try to communicate and do what we can to keep ourselves and our loved ones safe and happy while acknowledging that the ways in which we can do this are very different to what we are used to.
 

Many couples currently in lockdown together may already have started or been contemplating a separation and there may be some who, as a result of the strain the current situation is causing, decide to re-evaluate their circumstances. Although requirements to self-isolate and practice social distancing have restricted face to face access to professional support, help is still available.

A common misconception is that you need to go to court if you are separating and you have not reached an agreement with your partner regarding the practical arrangements arising out of your separation, which may include child arrangements and/or financial settlements. There are, however, a number of alternative dispute resolution methods which we can provide (including online) to help couples navigate a separation either with the support of a solicitor or on their own.

Below we consider some of these options and resources available to couples considering a separation during this time of lockdown.

Mediation

Mediation is traditionally conducted by the mediator in a face to face meeting with clients in the same room or by way of shuttle mediation where the mediator goes between the couple in two separate rooms. Given the current stay at home requirements, most mediators are now offering mediation using one of the videoconferencing platforms. The absence of face to face contact means that the mediator will need to set more ground rules to ensure that only one person speaks at a time to ensure everyone feels heard and so that the mediator can offer guidance and manage the session effectively.

As a mediator, I usually ask couples not to communicate with me by email between sessions to ensure that everything they have to say is shared with the other person during our meetings together. I have relaxed this rule during the current climate where it may be better for some of the discussions to take place by email, with both parties copied, in advance of any mediation session. 

While a virtual mediation session is a very different experience to a face to face one, some couples have reported finding it easier, and a little less pressure, doing it remotely and not spending time in a room together during what can be a strained and emotional time.  Mediation can be used to address the children and financial arrangements arising out of a separation, including matters which would not usually be dealt with by the court. There is a lot of uncertainty in the current climate but mediation can also be used to address interim arrangements if couples want to trial suggested approaches with a view to these being renewed when the stay at home rules are relaxed.

Whether a couple with children are in the same home or already living apart, it is important to ask one another (and the children depending on their age) what routines they want during the day and to acknowledge that what one person wants to do or achieve may be very different to the other.  It is ok to do things differently and separately within the home and consulting and acknowledging one another, even when you disagree, means everyone feels listened to which reduces tension. It is also important to acknowledge that when someone feels anxious, they may make quick decisions and feel less inclined to consult their partner.  Mediation is a good forum within which to address these issues and to explore each person’s concerns and priorities during such a difficult and unique set of circumstances.

 

Arbitration and private FDRs (Financial Dispute Resolution)

If there are areas on which a couple simply cannot agree, they may wish to appoint a private judge to assist. 

A private FDR judge is appointed by a couple and can give an indication in respect of the financial arrangements on separation. While their decisions are not binding on the parties, this mirrors the status of the second hearing in the court process and is still designed to promote settlement.  The private judge will advise the couple about the likely outcome of their case in the event of court proceedings and with this and guidance from their lawyers, negotiations will take place.  The judge will be available throughout the hearing to assist with negotiations and try to narrow the areas of dispute. 

Arbitration follows a similar format but the arbitrator can hear children and financial matters and hand down a binding decision which must be followed.

Due to the lockdown and staying at home rules, almost all hearings are currently being dealt with remotely and it is also possible for private FDRs and arbitrations to take place via videolink.  Like with mediation, the pace and conduct of the hearing will need to be adapted and proceedings may take slightly longer to progress. However, a remote hearing can be run efficiently with the right arbitrator or judge, which will save time and money.

The various ADR options are not only available or most appropriate during the lockdown but may also be appealing going forward when our already overstretched court system experiences backlogs and delays once the lockdown is lifted and in person hearings are listed again. The cost and speed of resolving matters using alternative dispute resolution methods and communication platforms could mean they continue to be a better option for resolving any disputes.

 

Practical considerations for any alternative dispute resolution (ADR) methods

Whether you are considering mediation, arbitration or a private FDR while the stay at home rules remain in place, there are a number of practical issues to consider: 

  • Children at home - if you have children, be aware of where they are in your or your partner’s home.  If you are going to engage in one of the ADR methods, which may take a few hours, ensure that your children are occupied away from the room you are in.  If you are using mediation, you may want to check if the mediator can offer an evening appointment, after children have gone to bed.
  • Preparation – you are likely to need time to prepare for your mediation or hearing, which may include the production of financial disclosure and speaking to your solicitor. Make sure you have enough time set aside to do this given your other childcare, schooling and work commitments. 
  • Sharing documents electronically – make sure that the software that you, your solicitors and any other professional advisors are using is secure so that your financial and other information can be shared safely.
  • Therapeutic support – we regularly suggest that clients seek therapeutic support when considering or going through a separation. Managing emotions can be difficult even when someone feels that everything else in their life is going well.  The current and unprecedented circumstances are placing a huge amount of pressure on everyone and it is more important than ever that people have a safe place in which to voice their worries and process their feelings. Having this support available will make it more manageable to engage in a legal process and process the legal advice given.
  • Stay in touch – we have probably all taken for granted the ease with which we can see friends, family, colleagues and professional advisers.  A sudden change to these relationships can make you feel lonely and lost. Even though we cannot see one another face to face, there is no reason why you cannot stay in touch regularly with those who provide you with support. If you are considering or already navigating a separation, speak to your support network on the phone, engage your therapist and ask your solicitor to keep in touch with you. That way, you will not deal with the pressure alone.

We recognise that these are unprecedented times and pressures on relationships may be greater than ever, and while we work with clients to resolve relationship disputes in the current climate in the best way possible, we also encourage couples to take stock and seek therapeutic support and we hope that many relationships will have a chance to survive and be strengthened through this. See also our blogs on navigating relationships through the coronavirus crisis and overcoming the challenges of co-parenting at this time.

Further information

You may be interested in reading our other blogs about mediation and other alternatives to litigation in resolving family disputes (see HERE) or our other blogs about other challenges families and separating couples are experiencing in the face of the current crisis:

See also our wider range of coronavirus blogs for these and other topics.

If you have any questions about alternative dispute resolution options during this time, please contact a member of our team of family and divorce lawyers or click here to get started online and find out where you stand.

Our team of specialist family lawyers includes experienced and accredited family mediators, Charlotte BradleyConnie Atkinson and Lauren Evans, allowing you to choose the right mediator to suit your personal circumstances.  We are able to provide substantive mediation (in relation to financial matters and/or issues relating to children) and we also undertake MIAMs (Mediation Information and Assessment Meetings).

About the author

Connie Atkinson is a Senior Associate in the family team and has experience of dealing with all aspects of private family work relating to both finances and children. Connie has expertise in cases involving: financial settlements; partnership, company and/or trust assets; international elements such as relocation and cross-border disputes; international surrogacy; arrangements for children; pre and post nuptial agreements. Connie is a qualified mediator and assists as a mediator for clients in respect of all practical and legal issues surrounding family arrangements and divorce.

 

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We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

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