Stuart (Stu) Webb, a Minnesota family attorney, wrote in 1990 that there has ‘got to be a better way’ than court to resolve disagreements between separating couples about arrangements for their children and finances. That led to collaborative law becoming established as a major feature in many parts of the US.
He advocated an approach which focused on creating a climate of settlement without the threat of ‘going to court lurking just around the corner’, abandoning ‘adversarial, contentious lawyering’ in favour of analytical reasoning to solve problems and generating a positive context for settlement.
So, 34 years on, how have we done as family solicitors?
It takes moments on Google to be overwhelmed by articles on the parlous state of the family justice system. Courts and judges are overwhelmed. Delays are increasing, leading to further costs for those who can afford them. Those who cannot – and are now unable to obtain any form of legal aid – are left to find a way around a legal system which offers no easily understandable solutions and a byzantine administrative system. All at a time when they are at their lowest emotionally.
Just a few statistics demonstrate the problem. In 2023, there were 44,563 financial remedy applications, an increase of 11% since 2022. While 2023 saw a slight reduction in private law children applications, there were still 50,798 private law cases started. From October to December 2023, it took an increased average period of 46 weeks for private law cases to reach a conclusion.
The Guardian reported in August 2023 that ‘tens of thousands of children have been left in limbo by delays in the Family Court that have meant many waiting over a year for their future to be resolved’. There can be no doubt that the Family Court is at breaking point. There is a limit to what judges can do, politicians are uninterested and there is no likelihood of more public money becoming available.
As solicitors, we are part of the family justice system and we have an obligation to do all we can to ensure the system works as well as it possibly can for clients. We are not short of ideas and initiatives, we just do not make enough use of them.
For financial cases, these include:
- Mediation;
- Collaboration;
- Arbitration;
- Early neutral evaluation;
- ‘One lawyer, two clients’, including ‘resolution together’; and
- ‘Private’ financial dispute resolution appointments conducted by experienced and specialist counsel, solicitors and retired judges.
For children, there are even more. The president of the Family Division, Sir Andrew McFarlane, in a speech as long ago as 31 October 2022 identified ‘12 options for avoiding the Family Court’, including those mentioned above.
We know that about 40% of private law children applications raise no legal issues. Rather, they are about broken relationships which judges cannot fix.
On 12 November 2020, the Family Solutions Group published a report, What about me?. At its core was putting children first and it questioned whether our system achieved this. For example, why is Cafcasss only directed to see the child or children concerned months after proceedings are issued and long after their parents have spent pages in statements criticising one another? The report concluded: ‘The family justice system is in crisis… The numbers of parents making applications are unmanageable and family courts are stretched beyond limits… The system is in need of radical reform.’
As solicitors, we need to explore all available options before advising clients to go to court. Collaborative law was launched in 2003 and it is vastly underused.
Family mediation goes back even further, to the 1970s. It has a good record in achieving settlement but its potential is yet to be fully achieved.
Family arbitration can resolve children as well as financial issues. The financial scheme was introduced in 2012 and for children in 2016. Unlike other models, it is a direct alternative to court. An arbitrator’s decision is as binding on the parties as a judge’s decision. Its primary advantages include speed, saving legal costs, confidentiality (which is increasingly important at a time when judges continue to wrestle with the extent to which family cases should be heard in public and reported in the press), flexibility, especially in deciding what needs to be determined, dates, times and venues. However, there have been just 710 arbitrations to date and just 23 this year.
We as practitioners must accept a large degree of responsibility for this. In part, that may be due to a lack of experience with all the options, in part fear of the unknown. Clients look to us to advise how best they can achieve resolution. If we suggest one or more of the options mentioned above, they are very likely to accept that advice.
We must avoid advising clients to go to court just so ‘a timetable can be set’ or because we ‘need the court’s assistance’.
Arbitration can set a timetable if one is really needed and, going back 34 years to Stu Webb, we and our fellow family lawyers have or should have the skills to create an environment for settlement and problem-solving. The courts can then be left to deal with those cases which genuinely require a judge to make a decision and save the system from total collapse.
We have the tools, let’s use them.
Graham Coy is a partner in the family team at Wilsons Solicitors, London
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