“We Should Finish This Uncivil Struggle.” President Joseph R. Biden, Inaugural Handle January 20, 2021

A man in a blue shirt is holding wooden blocks with a stamp of a man, woman and a referee … [+] Hammer in his hands.

getty

Parents around the world were ad infinitum in rude “wars” with one another when social rules and more financially accessible divorces allowed parents to separate or get divorced and children to live in separate households.

Stories of the rudeness between parenting or divorce are downright acts of sabotage – of changing children’s dates without notifying the other parent of the change, and then complaining that they are negligent in using personal information and accessing it online report confiscating PCs, adding tracking devices to their cars, notifying children of extramarital affairs, alcohol abuse, or other matters unsuitable for children.

Financial cases bring their own kind of “rudeness” including hiding assets, spending unnecessary money, making false claims of losing jobs, refusing to work or being underemployed, working for cash and reporting under the income low .

The rise in custody disputes and alimony disputes between parents who are separating or divorcing has been tantamount to small civil wars that first started at home and then flowed into courtrooms around the world. The internet is littered with reports from individual law firms of various custody disputes and bans, legal successes and failures in custody, and horror stories and child support strategies.

COVID stopped wars, but not all battles

When the world essentially stopped in mid-March 2020, courtrooms around the world closed for weeks, months, and now in some places nearing a full year. This does not mean that the courts did not resume business during these months of closure, but many families found alternatives to legal proceedings because they had to. A judge in New York told a lawyer trying to set a date for a trial in a custody battle that it would be best to hire a private judge because she would not hear the case for two years.

Increase in mediation practices

Private mediation has increased many times over since March 2020. FamilyKind, a nonprofit that offers sliding mediation services, saw its mediation services increase by over 100% year over year.

According to Read McCaffery of Coral Cables, Fla., Writing for Law.com, mediation may be perfect for the new reality we are in. “Aside from a very brief meeting with the parties at the beginning, the mediation process consists of the mediator meeting with each party individually to convey positions and identify the realistic strengths and weaknesses of a party’s claim or defense. It is actually more efficient to do this by conference call than by hopping the conference room.

David Allison of FLiP Family Law in Partnership, London, England stated, “The family court in England was under pressure before the pandemic and the effects of COVID on some courts have been disastrous for families. The court system has adapted to virtual hearings much better than most of us expected. However, this has not prevented significant delays and canceled hearings. Just one example is a troubled child case I am dealing with that had serious allegations of abuse that required a court decision before the father’s time with his children could be considered. This hearing was performed in March 2020. With the UK’s first lockdown this month, the hearing was adjourned to July 2020 with instructions that it could not be postponed. Then, a week before the July hearing, we received notification that the hearing had been removed from the list due to an urgent public service case. The next listing was in January 2021. In the meantime, the father had no contact with his children. “David’s customer story takes place in the United States and elsewhere in the world, where parents have been away for months without seeing their children and without being heard by a court.

David continues: “So it’s understandable that people are trying to find ways to solve their problems out of court. This has led to an increase in mediation, which in practice works quite well despite initial concerns. Since mediation is so much more than just finding a solution, it has to be positive for families. “

Private assessment

Rather than opting for the court system and randomly assigning a judge, parties to the private assessment can choose their own judge (not a judge currently in court), if they can agree, and take the case before him or her Court “test” them to be bound by the results.

Judge Roslyn Richter, former New York County Appellate Judge, Division 1, now Senior Counsel at Arnold & Porter, wrote for the New York Law Journal in an article entitled, Private Judging: What Is It? “With fewer arbitrators for court clerks and the elimination of hearing officers, the process capacity for cases that are not resolved is less than in the past. One option that has been discussed in the recent articles in this publication is “private judging”. The sentence is a bit unclear as these people are of course not state judges. Rather, they are privately compensated persons who can hear and decide matters in accordance with the provisions of the CPLR (New York State Rules of Civil Procedure). An obvious advantage of private judgment is the ability to influence the selection of the decision maker. Benefit when the case is in a busy part of the court is the ability to get a hearing earlier than the appointed judge can try. “

My colleague from London, England, David Allison, first described the process of “private assessment” in a conversation with me a few months earlier. David recently wrote: “We have also seen an increase in personal judgment. This mainly comes in two forms, both of which occurred before the pandemic but have been increasing since then. These are the private comparative hearings known as private FDRs (Financial Dispute Resolution) in money cases and ENA (Early Neutral Evaluation) in child cases and arbitration. Private FDRs and ENAs effectively replace the settlement / mediation phase of the legal process, with the court being the final arbitrator if no agreement is reached. Arbitration replaces the decision-making process of the court and enables this process to be shaped by the parties and, of course, run much faster. “

A pandemic brought about the necessary changes in our family law practices around the world

From the rise of mediation to the expansion of arbitration and ADR to “private judges”, individuals and their attorneys around the world work to polite the often “rude” practice of family law. There could well be an end to this “uncivil war” or at least a break to reduce the number of battles.