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Maybe now we will realise that the court process is not the answer?

Date:21 APR 2020
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The issues stemming from COVID-19 have brought into sharp focus the realities and limitations of the  court system. 

One of the positives of litigation and usually the most common reason for choosing to go down the route of utilising the court system is to ensure that a timetable is in place.  The court process provides a structure in which deadlines are set and the parties are kept on a track to resolution.  For months the parties prepare for the next hearing on the understanding that even in the unfortunate circumstance that they cannot settle matters, there will be a determination and an end.  However, it appears to have become increasingly common for the court to list at risk hearings and adjourn hearings at the last minute due to lack of judicial availability.  Indeed, in the six months leading up to today’s Covid-19 pandemic I am aware of three hearings, including a three day Final Hearing, being adjourned on the court’s own motion with only 36 – 48 hours’ notice being provided.  Clients are left in an unenviable position not just financially but emotionally.  Clients, solicitors and counsel have by that point done nearly all of the preparatory work for the hearing and counsel’s brief fees have already been incurred.  The money that clients are prepared to spend on representation in order to reach a conclusion is wasted and families are often left in untenable living arrangements.  The court users are let down by the very system in which they have put their faith.

As a result of the COVID-19 pandemic the physical courts have closed, cases are being re-timetabled, hearings adjourned, and guidance circulated urging parties to seek alternative dispute resolution.  It is well known that not all cases are capable of being resolved by agreement or without the intervention of someone neutral and authoritative.  That does not mean that the only solution is to rely on the court system and perhaps now the alternatives available can be brought to the fore:

  1. Arbitration
  2. Early Neutral Evaluation
  3. Private FDR
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These alternatives still provide clients with either a guaranteed outcome or the input of someone akin to a Judge. Indeed, they provide clients with more control over the timetable and a quicker resolution.  The additional cost of the arbitrator or private Judge are like to be less than what a client would spend on the legal fees incurred during drawn out court proceedings.  That is without factoring in the emotional cost of giving the parties control of location, time and choice of Judge. 

Hopefully these options will now be given more consideration whilst the court process cannot provide the answers and that there can be a sea change in the attitude towards instinctively issuing proceedings.  The upshot must be that more people can experience a more comfortable process and the court system is less burdened making it more available for those who have no alternatives.