Vanda James and Tom Quinn, both partners at Birketts LLP, join the latest Today's Family Lawyer to discuss the current sentiment around alternative and out of court dispute resolution.
Amongst the points up for discussion are
Both Tom and Vanda are advocates for out of court dispute resolution and acknowledge that although there are still lawyers out there who relish the adversarial nature of family, in general the culture is changing. Importantly, we are recognising the impact on parents and children, says Vanda, adding she personally finds the process more rewarding than going to court.
The changing culture has accelerated in part due to the impact of the COVID-19 pandemic, suggests Tom, which have exacerbated court delays and the inability to have cases heard.
On Private FDRs both in favour; there is, says Tom, a risk in the courts system the judge has simply not had chance to review the bundle, and/or the hearing is bumped out because of capacity issues.
Vanda agrees; the delays place people's lives on hold for months on end; speed is a huge factor in the success of private FDRs. There is also greater availability to choose the judge; more barristers want to do this work; and fees are coming down to a sensible level so it's more accessible.
The only thing we lose, says Tom, is the 'gravity' of going to court and having to sit in front of a judge; it focuses the mind and there is more pressure on parties to settle... but realistically we have no other option these days because of the delays.
Concluding the discussion Tom and Vanda share their thoughts on what the law commission should propose following their review of financial remedies.
There should be costs consequences for proposals put forward on a without prejudice basis; but on potential proposals to introduce more prescriptive legislation he's wary as the current discretionary process has huge benefits.
On the other hand, says Vanda, clients want and need certainty; the discretionary element is important but we could do more to create greater certainty in the process.
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