Briefing

"We are not yet anywhere near to becoming a society in which the culturally normal reaction to becoming involved in a dispute is to mediate"

Posted by : Annmarie Carvalho | Date posted : 10/11/2016

So said Lord Justice Briggs in September when discussing his recent review of the civil courts' structure. His proposed solution is the introduction of an 'Online Court' with these aims:

  1. To make the court process simpler for those representing themselves (of which there are very many);
  2. To educate people at the earliest stage about options other than court; and
  3. To divert people out into, for example, mediation, so that in the future mediation (and other processes led by the parties rather than by a court) will be seen as the norm rather than as merely an alternative to court.

To achieve this, the review recommended the development of a civil court with simplified processes intended to help those acting for themselves provisionally named the 'Online Court' but possibly to be renamed the 'Resolutions' or 'Solutions Court'. The idea is that more information and processes will be handled online and that users will be directed into the most appropriate method of resolution at the outset, be that mediation, judicial early neutral evaluation or another process, rather than going through the court system first and then being diverted out. The intention is also to bring non-court dispute resolution and the civil court process much closer together.

This new court will deal only with claims of up to £25,000 in value and will have the following four stages:

  1. Parties are triaged by automated software enabling the court to get to grips with the essentials of the case;
  2. A case officer/lawyer who is legally trained studies the product of the triage stage and identifies the most appropriate means of resolution including online or telephone mediation.
  3. Determination by a district judge – (if 2 above is not successful) via telephone, video or face to face trial.
  4. Appeal from the district judge, heard by a Circuit Judge and then a further right of appeal to the Court of Appeal.

The proposals are innovative and chime with developments in family law whereby the process of divorce is becoming increasingly digitalised. Online divorce services are becoming more and more popular and the expectation is that, by the end of 2017, people will be able to apply for and progress their divorce online. It is also expected that, at some point, precedent consent orders will be freely available online so that people will be able to draft their own financial agreements on relationship breakdown. The Ministry of Justice is also developing 'out of court' pathway support services online which will refer users to other services, which will presumably include mediation and other out of court solutions.

Lord Justice Briggs also referred in his speech to the Financial Dispute Resolution appointment in family proceedings as 'excellent' as it undoubtedly has been in encouraging parties to settle before final hearing. However, this sort of hearing is not available at the outset of a case and comes later on in proceedings after the parties have already spent a good few months in the court system. If a wholesale cultural change is what is required in order for non-court dispute resolution to become the norm in our family system as well as the wider civil system then it is important that changes are made whereby people are educated about and encouraged into non-court dispute resolution at the outset of the process as Lord Justice Briggs has proposed in respect of the civil court process. The introduction in 2014 of the Mediation Information and Assessment Meeting in family cases was intended to achieve this, with the majority of parties required to attend such a meeting before making a court application. However, it is widely acknowledged that this requirement has not been successful in encouraging people into mediation and that attendance at such meetings has been seen widely as a purely tick box exercise before people make their court applications. 

It will be interesting to see whether the proposed changes to the civil system do start to produce the desired cultural shift and hopefully the family courts may well follow suit in line with the introduction of online divorce services. It's crucial that those going through relationship breakdown are informed about all the options at the earliest stage possible so that they can make well-informed choices about what would work best for them.

 

If you require further information on anything covered in this briefing please contact Annmarie Carvalho (annmarie.carvalho@farrer.co.uk; 020 3375 7221) or your usual contact at the firm on 020 3375 7000. Further information can also be found on our family page.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, November 2016