Challenges and Alternatives with Keith Unger
A very warm welcome to another podcast episode with Warners Solicitors and today I’m joined by Keith Unger. Keith is a Partner with Warners Solicitors specialising in family law and today we are going to be talking about problems with the family court. A warm welcome to you, Keith.
Hello Paul.
Let’s start off by asking a question. What are the major issues and concerns in the family court at the moment?
There are a number of issues in the family court at the moment. The biggest, in our view, is delay. There are a huge number of adjournments, many of which take place at the last minute. There’s a lack of administration, which obviously makes things very difficult, and there’s also a new electronic portal for lodging documents and managing cases. So that needs to bed in at the moment. But those are the major problems as we see it.
So, with these problems, tell us more about what’s happening there. How does that impact on the delays? What are the delays in the system amounting to?
I think the portal is a good thing and cases when, in theory, move faster, but there are still potentially issues with that and perhaps we can come back to talk about that later.
On the court system, generally, we have the hard-pressed judiciary and the court staff and they’re doing their very best, but the truth is that the system is creaking. And I think that’s as a result of years of under-investment and a significant increase of litigants representing themselves, and I think that’s primarily because of the removal of legal aid.
This was championed by Chris Grayling back in the legislation that took place in 2013. That was called LASPO, so in that, all aspects of family law, other than those involving domestic violence and some care cases, were removed from the scope of legal aid. This resulted in a huge number of people having to self-represent in an area that can be quite complicated. So in practice, this means that the court needs a lot more time to deal with those cases because the party is not familiar with the law or the procedure. This places a huge burden on an already busy system, so we’ve gone from telling clients that it may take around a year for their fully contested matters to come to trial if it goes that far to now, preparing them potentially for two plus years. So there’s a statutory steer on avoiding delay in proceedings concerning children and even though they themselves suffer a fair amount of delay, I think the biggest casualty of the system involves those cases where the parties are involved in financial disputes.
So has this affected any of the cases that you’re working on? Can you give us a few examples?
Yes, there are numerous examples. It’s not just a product of the pandemic. I think in this month alone, I’ve had one children’s final hearing. Now that was listed for May and that was cancelled, and the court said, I quote, “this is due to a change in our judicial diary that week“. I should say that the last hearing on that case took place in September of last year and we waited until January of this year for May’s hearing to be listed. So, following this recent adjournment, we were then asked to provide dates to avoid up to December of this year so that the court could relist. That in itself would represent potentially a seven-month delay, but in the context of that case, the application was initially made in January 2021. Therefore, there’s the possibility of it taking nearly three years to be decided, and that is, of course, assuming the next hearing is not adjourned. This was not a complicated case, so that is very concerning. In actual fact, it’s now been listed for August, but that’s still more than two and a half years for a children’s case to get to a final hearing. Again, as I say, that’s on the assumption that it does proceed in August.
I also had another hearing. This was a financial hearing. It was listed for directions, so it’s not a final hearing like the children’s example I just gave. Now we agreed directions with my opponent. We sent that consent of order to court in the expectation that the hearing would be adjourned and the directions order made in line with the suggestions agreed between us, and we proceeded on that basis. As it turns out, the court did not get that application and was going to proceed with the hearing. Unbeknown to them, we had actually submitted it, but on the day before that hearing, we received an email from the court to say that the hearing was adjourned. Again, I quote “this was due to a lack of judicial time.“ Now as I said to my client in that case, that would have cost him and his former partner somewhere in the region of £10,000 in wasted legal costs had that hearing proceeded and then it was going to be adjourned at the last moment. I mean, it’s a shocking waste of time and money.
Yes, that sums it up. It sounds like a really stressful scenario and when you look at it, what advice are you able to give now to anyone who may need to use the family court system in the near future?
The outcome here is that there’s a significant delay, there’s stress, there’s frustration and there’s a significant cost increase, as I say. I don’t say that to suggest that lawyers are relaxed, but we are used to this. For clients, I think it can be crushing because you’ve got to consider the emotional investment they have in getting this matter dealt with. So the advice I always give is to explore other non-court options in a serious way as well. I think quite often people refer to non-court options almost like they’re going through the motion. But, as you can see from the examples I’ve given, I think if you have a serious run at a non-court option, it really does make sense in the longer term. So in terms of non-court options, we have a number of alternatives. So we have mediation, which people are, I think, increasingly aware of. It’s one of the rare cases where some form of legal aid is still available, but it’s not a silver bullet.
The government would have you think that is the case because it seems that we are now going to be requiring everybody to attend mediation. That’s pursuant to an announcement made by the government in March of this year. Now the statistics that are available for legally-aided mediation suggest that 60% are successful. Unfortunately, I think that’s slightly misleading as a partial agreement on a mediation that may consist of a number of different threads. If you reach an agreement partially, that counts as a success for the purposes of the statistics. So it’s certainly not a panacea, and it’s also the case that mediation appears to have a much greater chance of being successful if the issue is regarding children rather than finances, or indeed both, as is often the case.
Another alternative that we have is something called arbitration, so this is not quite so widely known. It can deal with both finances and children. Essentially, it’s a private court hearing. The case can be decided from start to finish in a matter of months instead of potentially 18 months, two years or more. So, in this case, each party has their own lawyer. They jointly appoint an independent, impartial arbitrator. Ultimately, the arbitrator will have a hearing or, in some cases, can decide the matter on the basis of the papers themselves rather than a physical hearing. The decision is binding and it will then be recorded in a court order.
In our experience, there appears to be some inexplicable reluctance on the part of some parties and or their lawyers to go down this route. This is notwithstanding that it works out to be significantly less costly than going to a final hearing in litigation. I think it’s a massively underutilised avenue and I suspect it’s misunderstood in that I suggested it on a case recently and my opposite number’s response was that they didn’t see how it could help. That suggests a fundamental misunderstanding of the process because of course, the arbitrator makes a final decision and that decision is made in very short order, so it’s quite difficult to see their point.
Another avenue that can be pursued is something called a private FDR. Now FDR stands for Financial Dispute Resolution, so this deals with finances only, as suggested by the name, and essentially, like arbitration, it’s a private court hearing and it replaces the middle stage of the court process, the FDR. So it is a hearing that you can consider a bit more like mediation, but with guidance being given by the judge on an appropriate settlement. So the parties prepare the cases in the usual way, as they would if they were in court. That involves exchanging financial information, getting expert reports, crunching the numbers etc. And then we go straight to the private FDR. So, like arbitration, a case can be decided from start to finish in a matter of months. Again, you each have your own lawyer and again, you appoint the independent, impartial evaluator, who you can refer to as the judge or the private judge. Now they will give an indication as to what they consider the outcome would be if the matter went to a final hearing or a trial. So this is exactly what happens in a public court case. Like the FDR stage, in a public court case, the decision is not binding, but it is very persuasive.
The difference between a private FDR and an FDR in the public arena is they’re quite significant actually, in that, number one, the evaluator deals with your case only on the day, versus several in the public court. They will have read and considered all of the papers in advance and that certainly can’t be guaranteed in the public court and they’ll give a written indication. So many cases do settle at court on the day of the FDR or shortly after; anecdotally, it is our experience that the percentage is significantly higher in private FDRs. Since lockdown, we estimate that we’ve been involved in several tens of private FDRs, and not one of them has failed to settle on the day or within a few days of that concluding once the dust has settled.
The only financial difference in a private FDR, as compared to a court case, is that each of the parties share the evaluator’s fees. That varies, but typically it may mean that each pays an additional £1,500 plus VAT. It’s also somewhat cheaper than your typical arbitration, which follows a more contested case route typically. So when we look at the risk of last minute adjournments and we take those out of the equation, we also take out of the equation the money that will be lost as a result of the last-minute adjournments. The process, in my view, is very attractive and highly recommended. In our experience, and my experience, clients generally prefer the option of a private FDR and that’s why, personally, I’m very keen to explore this in every case. There are, of course, other alternatives, but in my view, these are variations on a theme and are quite narrow in application.
Thank you. That’s very thorough and my impression is that, coming out of the problems that are happening in the family court, the amount of time that goes by without any action, the alternatives seem to be quite sound and increasingly of interest to you exploring those avenues, such as the private FDR, public FDR, arbitration or mediation. There seems to be some very solid options here.
I think there are some very solid options. I can only put myself in that position and if I were going through the process, one of those options, probably the private FDR is the option I would go for. I describe it often to clients as a bit of a no-brainer.
And they’re happy to take that on board now as an alternative?
Yes, increasingly so. Clients, when you speak to them, when you sit them down and go through the examples that I’ve just mentioned as to what can happen at court and the resultant financial loss. It makes absolute sense in almost every case. In fact, I struggle to recall a time in the past three, possibly four years, where one of my clients has been resistant to the notion of undertaking a private FDR.
Well, thank you, Keith, for focusing on the problems with the family court. If people want more information from you, how can they make contact with you?
I think the best thing to do is to email me. I’m happy to take emails direct. My email address is [email protected]. I’ll certainly aim to get back to any inquiry within 24 hours or so.
Thank you, Keith, for your time today. I’ve been talking today with Keith Unger, who is a partner with Warners Solicitors, specialising in family law. We’ve been focusing on the problems with the family court. Please do check out the other podcasts in this series. You can gain extremely good advice from the solicitors at Warners. And for the family team, please arrange a consultation with any of the family team here at Warners Solicitors as soon as it’s convenient for you. I’m Paul Harvey. Please join me next time.
