After the pandemic played havoc with our justice system as well as our health system, Cynthia McFarlane writes that we need to find alternative ways of dealing with many of the cases stuck in the backlog in order to reduce our reliance on the courts. 

We all know that COVID has triggered a huge overstretch of our healthcare systems. Fewer people are aware that the pandemic has also pushed our courts system to breaking point, leading to years of delays for everything from crown court cases to civil claims for issues like divorce or debt recovery. This endangers our society and economy, and needs to be solved.

One solution is simply to wait for our backlogged courts to churn through cases, a process that could take many years – if indeed, the backlog is ever cleared.

As a mediator and barrister specialising in Alternative Dispute Resolution, I know that not every legal issue should end up in the courts – in fact, many shouldn't. Settling disputes through the more informal mediation process is a faster, cheaper and often fairer way to arrive at a settlement. It's time we made mediation a more integral part of our legal system, particularly for those who don't have the bandwidth, patience or cash reserves for court processes that can take years to conclude.

According to HMTCS data, back in May 2020, there were 13,504 outstanding family cases, which is an increase of 1,209 from pre-pandemic levels. This shouldn't come as a surprise when the courts were only operating at 80 per cent of their full capacity. In the US, a recent report suggests that the average state backlog has increased by about a third on average.

However, even before COVID-19, there was significant evidence that the court system was already suffering; COVID only exacerbated the problem. On the 22nd of May 2020, Lord Chief Justice Lord Burnett commented that the courts had been "starved of funds", and that the "consequences of that underfunding had come home to roost."

Behind these backlogs are tragic human stories. These will involve court cases involving families going through difficult separations over lockdown. It may involve individuals who have been unfairly treated by their employers. It will certainly involve people who face eviction as a result of the lifting of the eviction ban on the 31st of May 2021. For those who have wanted to move on from devastating experiences of lockdown, a wait of up to three years for a judgment will inevitably prolong the trauma.

Whilst the courts have remained at 80 per cent capacity in the UK, in the US, many of the courts have simply shut down. As the courts re-open, there have been incidents of many cases simply being dropped in order to free up the COVID-induced backlog. In the criminal justice system, this means that thousands have been locked up in jail awaiting their hearing, whilst many other criminals have been able to get off scot-free.

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Many are aware of the sometimes fatal backlog faced by hospitals. But now, the courts are facing similar delays, and yet again, it will be individuals who pay the price. As Meg Garvin, Executive Director of the National Crime Victim Law Institute rightly pointed out when cases get dropped, "What that says to communities is that you don't matter as much." When people are told by the legal system that they don't matter, it's understandable that they will then stop turning to the courts to seek justice. They'll simply seek it themselves – or give up entirely.

As a mediator and barrister who specialises in mediation, I know that this form of conflict resolution can be a much cheaper and quicker form of justice than the traditional litigation system.

In mediation, a neutral third party will be called on to help with the differences in the parties positions and to establish a settlement in the dispute. Statistics suggest that 80 per cent of claims mediated ultimately settle and that saves both on public resources and saves the parties involved time and money. It is a win-win.

Beyond the ability to free up the court system, mediation comes with a range of extra benefits. Most court cases are public due to the principle of 'open justice', even though a lot of the content involved is extremely sensitive. In short, mediation affords privacy – something that is often desired by all parties involved in a dispute.

Mediation also has a unique ability to not only settle past or current disputes, but prevent future ones. Whilst litigation is often contentious and has the power to destroy even the strongest personal or business relationships, mediation is conciliatory in nature.

The role of a mediator is to help settle disputes, but I also advocate using this system to provide parties with the opportunity of avoiding new ones. We are going through tough personal and economic times; relationships of any form are precious. Mediation can help to preserve them.

Despite these benefits, I know many solicitors who simply never offer mediation as a service at all to their clients. In such circumstances their clients are then often left with only one option, a lengthy court case which in turn results in more billable hours for the solicitor. This raises ethical questions, and robs clients of a solution to their issues, and the public of a solution to the court backlog.

Litigation is in my view overused, and does not necessarily deliver the best verdict for each party. A judge has to come to a verdict based on the specifics of a case, whereas a mediator can allow the individuals to come to an agreement that is cognisant of a wider range of factors that are at play. Sometimes, a mediator is free to come up with creative solutions to satisfy both parties' concerns.

It's time that both the public and the legal profession realise that litigation is not the only answer. There should be new spaces and opportunities for mediation at all stages of the court process. It's time we stopped relying on the courts to solve almost every dispute we face – and for us to be given a much greater incentive to resolve disputes ourselves, where possible.

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