Parents across the globe have been in uncivil “wars” with each other ad infinitum once societal rules and more financially accessible divorces allowed for parents to separate or divorce and children to live in separate households. 

Stories of uncivility between separating or divorcing parents include outright acts of sabotage-from changing children’s appointments without telling the other parent of the change and then complaining they are neglectful, appropriating personal details and reporting them online, seizing personal computers, adding tracking devices to their automobiles, telling children about extra-marital affairs, alcohol abuse or other matters not appropriate for children. 

Financial cases bring their own brand of “uncivility” including hiding assets, spending money unnecessarily, claiming job loss falsely, refusing to work or being underemployed, working for cash and under reporting income among the few. 

The increase in child custody disputes and child support disputes between parents separating or divorcing has been tantamount to small uncivil wars conducted at first in the home and then flowing into courtrooms across the globe. The web is littered with individual law firms reports on various custody fight dos and don’ts, child custody legal successes and failures and horror stories and child support strategies. 

Covid Stopped The Wars But Not All The Battles 

When the world was essentially stopped sometime in mid-March, 2020, courtrooms across the globe closed for weeks, months and now in some places approaching a full year. This is not to say that the business of the courts didn’t continue during these months of shutdowns, but many families found alternatives to court litigation because they had to. One judge in New York told an attorney trying to set a trial date in a custody dispute that he best hire a private judge because she couldn’t hear the case for two years. 

Increase in Mediation Practices

Private mediation has increased many fold since March 2020. FamilyKind, a not-for-profit service offering mediation service on a sliding scale reported an increase in its mediation services of over 100% over the year prior. 

Mediation may well be perfectly suited to the new reality we find ourselves in according to Read McCaffery, in Coral Cables, Fla. writing for Law.com. “Other than a very brief session with the parties together at the outset, the mediation procedure involves the mediator meeting one-on-one with each party as he or she attempts to convey positions and assist in the realistic recognition of the strengths and weaknesses of a party’s claim or defense. It is actually more efficient for this procedure to occur via teleconference as opposed to conference room “hopping.”

According to David Allison of FLiP Family Law in Partnership, London, England, “The Family Court in England was under pressure before the pandemic and the impact of Covid on some courts has been catastrophic for families. The court system has adapted to virtual hearings considerably better than most of us anticipated but this has not prevented significant delays and cancelled hearings. Just one example is a difficult children case I am dealing with where serious allegations of abuse were made that required court determination before the father’s time with his children could be considered. That ‘fact find’ hearing was listed in March 2020. With the first lock down in the U.K. that month the hearing was adjourned to July 2020 with a direction that it could not be moved. Then a week before the July hearing we received notice that the hearing had been removed from the list due to an urgent public law case. The next listing was January 2021. In the intervening period the father had no contact with his children.” David’s client’s story is playing out all across the United States and elsewhere around the globe where parents have gone for months without seeing their children and without being able to be heard by a court.            

David goes on to say, “Understandably therefore people are trying to find ways to resolve their issues outside of court. This has led to an increase in mediation which, despite initial misgivings is working pretty well virtually. As mediation is about so much more than finding a solution this has to be positive for families.”

Private Judging

Rather than opt into the court system and be randomly assigned a judge, private judging allows for the litigants to select their own judge (not a judge currently sitting in a court), provided they can agree, and “try” the case before him or her, binding themselves to the results. 

Justice Roslyn Richter, former Appellate judge in New York County, 1st Department, now senior counsel with Arnold & Porter, wrote for the New York Law Journal in an article titled: Private Judging: What is This? “Because there are fewer court employee referees and judicial hearing officers have been eliminated, trial capacity for cases that are not resolved is more limited than in the past. One option that has been discussed in recent articles in this publication is “private judging.” The phrase is somewhat unclear because, of course, these individuals are not state court judges. Rather, they are private compensated individuals who can hear and determine matters pursuant to provisions in the CPLR (New York State Rules of Civil Procedure)… An obvious benefit of private judging is the ability to have input into the selection of the decision maker…Another benefit, if the case is in a busy court part, is the ability to get a trial sooner than the assigned judge can try it.”

My colleague from London, England, David Allison, first described the “private judging” process a few months earlier in a conversation with me. David recently wrote, “We have also seen an increase in private judging. This principally takes two forms both of which were taking place before the pandemic but are increasing since. These are the private settlement hearings known as private FDR’s (Financial Dispute Resolution) in money cases and ENA (Early Neutral Evaluation) in children cases and arbitration. Private FDRs and ENAs effectively replace the settlement/mediation stage of the court process with the court being the final arbiter if agreement is not reached. Arbitration replaces the decision-making process of the court and enables that process to be designed by the parties and of course take place considerably more quickly. “

A Pandemic Brought Necessary Changes to Our Family Law Practices Globally

From increases in mediation to an expansion of Arbitration and ADR into “private judging” individuals and their lawyers across the globe are working to try to bring civility to the often “uncivil” practice of family law. There may well be an end to this “Uncivil War” or at least some reprieve in a lessening in the number of battles.

By Patricia Fersch