Virtual Court Hearings and Remote Mediation in Family Law

Virtual Court Hearings and Remote Mediation in Family Law

I. Introduction: The New Normal

Virtual Court Hearings are now commonplace, but up until 2020 if you had a court hearing in your family law matter then you would almost certainly have had to attend the hearing in person. All court hearings were conducted face to face in the courtroom, with all relevant persons, including the parties, their lawyers, and witnesses having to be present.

The idea of Virtual Court Hearings, where the participants, or some of them, attended remotely via video link or telephone, had been under consideration prior to 2020, but progress towards the use of virtual hearings had been painfully slow.

All of that changed with the outbreak of the Covid-19 pandemic. The introduction of social distancing measures meant that face to face hearings were largely no longer possible, and the family justice system therefore turned to virtual hearings, as a way to enable the courts to continue to operate.

And the introduction of virtual hearings was so successful that their use did not stop when the pandemic ended. Whilst face to face hearings returned, virtual family court hearings remain commonplace.

In this article we will look at what happens when a virtual hearing takes place, what you need to know if a hearing in your case is held remotely, and the pros and cons of ‘going virtual’. We will also look at how family mediation can be undertaken virtually.

II. Understanding Remote Family Court Hearings

The Court Decides – It is for the court to decide whether or not a hearing should take place remotely. In doing so it will consider such things as the nature of the matters at stake during the hearing, any issues the use of video/audio technology may present for participants in the hearing, and any issues around public access to the hearing. It is even possible for the court to direct a ‘hybrid’ hearing, where some participants attend court remotely and others attend court in person. Most types of hearing can take place remotely, although some consider that ‘administrative’ hearings, such as directions and case management hearings, are more suitable to be heard remotely than contested hearings, such as fact-finding hearings and final hearings. The court will inform you if your hearing is to take place remotely. If you cannot attend the hearing remotely then you should inform the court immediately.

Telephone or Video – Remote hearings can take place by telephone or video. If it is by telephone then you will receive a call at the time of the hearing, and be invited to join the hearing. If the hearing is happening by video, the court will tell you what video platform is being used.

Confidentiality – It is essential to understand that a remote hearing will still have to be confidential. Accordingly, a party must ensure that they are attending the hearing in private – it would not be appropriate to attend the hearing in a public space where there is the risk that the conversation can be overheard. The hearing must also not be recorded – it is a criminal offence to record court proceedings without permission.

Preparing for the Hearing – The steps that should be taken in preparation for a remote hearing depend upon the exact nature of the hearing, but may include:

• Ensuring you have somewhere quiet and private to join the hearing, where you will not be interrupted or distracted.

• If the hearing is via video, you should make sure you have the right equipment and software, and a good internet connection. If necessary, ensure that your device has a good charge.

• If the hearing is by telephone, and you are using a mobile phone, make sure that you have good reception where you will be taking the call, and that your phone has plenty of charge.

• Having any documents you need for the hearing ready beforehand – this could be a paper bundle that you have in front of you, or an ‘e-bundle’ which could be accessed on another screen or device.

Lastly, be ready for the hearing at least 15 minutes before it is due to start.

During the Hearing – There are a number of things that should be borne in mind during the hearing, including:

• You should mute your microphone when you are not speaking.

• You should not interrupt other participants when they are speaking.

• You should inform the court if you are having technical difficulties, or if you are interrupted, for example by someone else coming into the room you are in.

• If it is a video hearing remember you’ll be seen on screen and should be mindful of your body language and behaviour, whether you’re speaking or not (you should keep your video on during the hearing, unless told otherwise).

• Do not eat or smoke during the hearing, and only drink water.

• Do not leave the hearing unless permitted.

The End of the Hearing

• Obviously, the judge or magistrates will make their decision at the end of the hearing. They may do this immediately, they may leave the telephone or video call for a short time to consider their decision, or they may inform the parties that the decision will be sent to them at a later date. The judge or magistrate will tell you when you can leave the hearing.

III. Optimizing Your Presentation in a Virtual Hearing

There are several steps that you can take to optimise your presentation in a virtual hearing, such as:

• Appearance & Setting: If it is a video hearing than dress professionally, as if you were attending in person. If possible, use a neutral background, and ensure there is good lighting (light in front of your face).
• Etiquette and Communication: As mentioned above, you should mute the microphone when not speaking. When you do speak, do so clearly and slowly. Always wait to be invited to speak by the judge/magistrates.
• Managing Documents: You may well need to reference documents during the hearing, and this may not be easy, if there is a large document bundle. It is therefore a good idea to practice referencing documents by page number quickly. Keep your position statement (or notes) visible, but discrete.
• Vulnerability & Special Measures: Lastly, you should inform the court as soon as possible if you lack equipment, have poor internet, require an interpreter, or need safety measures (for example preventing the other party from knowing your physical location).

IV. Virtual Family Mediation

Family Mediation, where the parties agree to refer their dispute to a trained mediator who will help them try to resolve the matter by agreement, can also be conducted remotely. Walker Family Law offer an online family mediation service, conducting the entire mediation process remotely, thereby allowing clients to participate from the comfort of a location of their choice.

Some things to note about virtual family mediation:

The MIAM: Anyone wishing to make an application to a family court must usually first attend a Mediation Information and Assessment Meeting, or ‘MIAM’. The purpose of the MIAM is to inform the applicant of all the different ways the matter might be resolved without going to court, including mediation, and to assess whether the case is suitable for mediation. The MIAM will be held in the mediator’s office or an agreed venue, but can also be conducted remotely, if that is the best way to hold the meeting.

Process Options: There are two ways that family mediation can be conducted remotely:

• Joint Mediation: Whereby all parties, including the mediator, meet together in a single virtual meeting room; and

• Shuttle Mediation: In which the parties are in separate virtual “breakout rooms”, or on separate calls, and the mediator moves back and forth between them to convey proposals and positions. This is particularly useful in high-conflict situations, or when the parties prefer not to be in the same “room”, even virtually.

Preparation for Virtual Mediation: Anyone involved in virtual family mediation should take the appropriate steps to prepare for the mediation meetings, in a similar way to which they would prepare for a virtual court hearing, as explained above.

Outcome: If the remote mediation is successful, the mediator will still prepare a written Memorandum of Understanding setting out the agreed terms, in the same way they would with a mediation that was not dealt with remotely. And in the case of financial settlements on divorce, the agreed terms must still be incorporated into a consent court order, to ensure that they are both final and enforceable.

V. Pros and Cons of Going Virtual

We will conclude this article by looking briefly at the advantages and disadvantages of ‘going virtual’.

The Advantages:

• Cost Savings: Virtual hearings offer a significant reduction in travel costs, time off work, and solicitor’s fees associated with travel and waiting time.

• Convenience: Virtual hearings can also offer greater scheduling flexibility and less stress/anxiety associated with physically entering a courtroom.

• Efficiency: For simple or procedural hearings, the process can be much quicker.

• The Disadvantages (and Risks):
  • Technical Risks: The primary risk with virtual hearings is poor internet connectivity, equipment failure, and platform issues, all of which can lead to delays or adjournments.
  • Impaired Communication: Reading body language, tone, and emotional responses can be essential to the court process, especially in judging whether someone is telling the truth. This can be much more difficult in virtual court hearings.
  • Erosion of Formality: There is a risk of participants in virtual hearings treating the hearing too casually, potentially reducing the gravity of the proceedings.
  • Access to Justice: Lastly, some litigants without a solicitor may lack digital skills, privacy, or adequate equipment, which may impair their access to justice.