When families separate, things can get messy and incredibly uncivil. Family Law litigation stories are frequently unpleasant, and things often get worse when they hit the courtroom.
The last 20 years have seen a significant rise in Alternative Dispute Resolution (ADR) as an alternative to formal court proceedings. That rise has accelerated dramatically in the last year due to COVID-19. The use of online mediation services and ‘private judges’ has soared since the start of the pandemic as more traditional options have not been available. For example, firms such as Familykind, a not-for-profit organization offering mediation services, reported a 100% increase in their use compared to the previous year.
When COVID-19 struck, it effectively shut down a lot of the standard procedures relating to Family Litigation. Courtrooms across world closed and, in many places, have not fully reopened. However, families continued to split and there was still a need for aspects such as asset division and child custody to be fairly assessed. This situation has led to an increase in remote mediation and the use of private judges.
The result of this shift has led to many realizing the benefits of digital mediation. Unlike judicial or arbitral hearings, mediation doesn’t require face-to-face confrontation, and many in family law have found mediation via teleconferencing to be noticeably more efficient.
Apart from a possible brief session at the outset, it is common for the mediator to talk to each client in turn. Previously, this led to ‘conference room hopping’ which could prove arduous. Switching between screens, however, is obviously more straightforward and faster.
Doing the process digitally also has the advantage that the people involved don’t have to take half a day or more off work, saving on time and travel costs. Depending on how acrimonious the split, there are considerable advantages to having people separated and not in the same office. This distancing leads to plaintiffs remaining calmer and more susceptible to negotiation.
A lot of clients are finding they prefer mediation and private judging. If a case goes to court, plaintiffs are randomly assigned a judge. With private judging, litigants can, assuming they agree, select their own judge. These are, however, not state judges but private paid individuals.
Private judging has been increasingly popular with Financial Dispute Resolution (FDR) for money-related cases and Early Neutral Evaluation (ENA) for children cases and arbitration. The main advantages of private judging are litigants having input into the selection of the judge, and that the case is more likely to be heard and decided considerably more quickly.
Contrary to what many think, mediators and private judges are usually highly experienced due to rising demand and competition. With COVID-19 and court closures, the need for online ADR has been significant.
Those in the legal system are similarly favorable toward these services as there is a back-log of cases, and efficiency is needed. In New York, a judge recently recommended an attorney use a ‘private judge’ as she couldn’t hear a custody case for at least two years.
Family Law specialists are watching developments with interest. Due to COVID-19, families and their legal representatives have been forced into using online mediation and private judges as their only option. The use of ADR services continues to grow, and the ever-increasing demand is unlikely to slow for months, probably longer.
However, many are finding digital mediation preferable, in terms of both experience and efficiency, compared to the traditional court system. Assuming seasoned and experienced experts remain involved, online ADR services may well become the preferred option in the future.