Pressures on court time and the increasing use of remote courts over the COVID-19 pandemic have led to the increasing popularity and success of Private FDRs within (and instead of) financial remedy proceedings within the last 5 years.

A Private FDR is a ‘without prejudice’ hearing which can be used for financial remedy cases on divorce, and Schedule 1 to the Children Act 1989 cases, where a privately appointed ‘judge’ (evaluator) indicates the likely outcome of a case and order that a judge will make at final hearing within the court system.

Private FDRs have received judicial encouragement nationwide, and there is an increasing emphasis on their use where possible and case-law has confirmed that attending a Private FDR is an ‘exceptional reason’1 for dispensing with a court FDR.

As we become accustomed to another way of practising, which is not regulated or subject to the same scrutiny, as say, appointment to the judiciary, are we, as a legal profession doing enough to make sure that the way that we approach Private FDRs is balanced and unbiased?

What is the issue?

There is a significant problem with Private FDRs at present. Research suggests that the majority of Private FDRs are conducted by a minority of chosen evaluators, the vast majority of whom are white, male barristers over a particular number of years’ call, either at senior, junior or KC level.

Approximately half of the junior family finance bar is female2 (42% of top set family finance barristers overall3). Just 16% of family finance silks are female. Whilst law firms are under pressure to address the gender pay gap, data published by the Bar Council shows that women barristers in family law earn around 43% less than men, and that the gap has widened in recent years.4

In the Financial Remedies Journal Private FDR directory,5 41% of the 183 practitioners listed as offering services as Private FDR evaluators are female.

Based on these statistics, somewhere between a third and a half of Private FDRs should be conducted by female juniors, and of those Private FDRs before silks, one in five should be before female silks. However, anecdotally, just 1% of Private FDRs in London were conducted by women.

Is this a case of women being put forward (as say one of three options), and then not being selected, or not being put forward at all?

I received a letter last year on a case, from a counterpart, with three proposed names for Private FDR ‘judges’. The panel he put forward were all male, all white and all within a certain age bracket. I rejected the proposals and put forward my own, diverse selection. The response was a threat to report me to the Solicitors Regulation Authority for being rude and a robust defence of the original selection, rather than recognition of the issue and a resolve to ‘do better’ next time.

Solicitors and counsel need to take responsibility for ‘sleepwalking’ into this (as Katherine Landells, Partner at Withers, puts it). Katherine has spearheaded a group of 40+ lawyers who are committed to taking positive action to raise awareness of gender equality and unconscious bias within the process of selecting a Private FDR evaluator.

Why is this happening?

There is not one standalone cause for this, but rather several issues which are endemic within the legal system we operate in, and society as a whole.

Unconscious bias

‘All human beings – women and men – are biased; we are hardwired to make implicit associations which force us to automatically characterise people and make judgments about them based on those characteristics. But whilst this enables quick decision making, it is also the foundation of stereotypes, prejudice and discrimination.’6

According to the Law Society, unconscious bias was perceived to be the main barrier to career progression in 2018,7 although concerningly, only 11% reported any visible steps being taken to address this.

Perceived judicial leaning

One line of thought is that there is a perception that a wife who is a home-maker, claiming a high level of spousal maintenance, would not want a female evaluator. The fear is that the female evaluator would not be able to relate to their situation as a working woman, leading in turn to a panel of male evaluators being put forward for selection by instructing solicitors wanting to avoid this risk (a point made by Joanne Edwards of Forsters in March 20228).

It’s who you know

There is also the question of what or who you know. Most experienced practitioners are likely to select evaluators that they have experience of, and probably instructed on cases in the past, probably someone of over 15 years’ call – and as 65% are male (BSB source) and 83% are white, the chances are that the person selected is a white male.

This issue is self-perpetuating, though. How does a solicitor learn who they like to instruct as counsel? Most likely, in my experience, from recommendations from established senior colleagues and from our contemporaries. It is easy to forget just how influential we can be towards how our junior lawyers’ practice is shaped – they learn by example.

What can we do?

In the court system, there is no element of self-selection – we do not choose the judge who hears our client’s case. There are targets and quotas regarding appointments of women within the judiciary, and promoting diverse groups. The unregulated space that the Private FDR falls within is the Wild West of the family justice system, in contrast. It is a self-selecting space and, as a result, unconscious bias comes to the fore in the selections that are put forward. In the public space, because it is accountable, work is being done to strive to close the gender gap and address issues of inequality – we are not there yet, but at least there is awareness and something is happening. In the private legal world, though, in areas such as Private FDRs, we still see women facing huge inequality and injustice. How do we change what happens in that space?

Without regulation, we as professionals with a conscience should make it our duty and responsibility to ensure that we are actively taking steps to tackle this bias. As a matter of course, we should be actively presenting a diverse panel of options to clients and to counterparts when considering who we appoint, whether as chosen counsel for a case, an evaluator for a Private FDR, or choosing an arbitrator.

Resolution, the membership organisation for family justice professionals, has formed a working group which is looking into the principles and standards for early neutral evaluations and Private FDRs, involving representatives from the International Family Law Association and the Family Law Bar Association, and how as a profession we can ensure that there are adequate learning and development resources available to the professionals undertaking this work, and those that are operating within this system.

Unconscious bias awareness

Unconscious bias might be defined as ‘learned behaviour around social stereotypes that are automatic and unintentional … sometimes we are even unaware how they shape our decision-making as they are not consciously thought through’.9

If you are a team leader, look into options for how to raise awareness of unconscious bias within your team, for example, inspirational reading on the issue and inspiring training sessions. Built-in stereotypes that we are not aware of on a conscious, daily basis are not going to be fixed overnight, or by just attending one course, and so having regular cross-checks with yourself is essential to ensure you are actively questioning and keeping an open mind, rather than slipping back into old ways.

The ICCA Gender Diversity Task Force Report

There is much that can be learned from other organisations undertaking similar work. The International Council for Commercial Arbitration produced a report last year,10 aimed at addressing ways to increase diversity within arbitration, worldwide. Perhaps unsurprisingly, very few arbitrations take place before women.

Some of the key messages from its report, which are just as applicable to the appointment of Private FDR evaluators and which particularly resonated, include:

• Address unconscious bias.
• Be conscious of how women candidates are described to clients.
• Engage with and sponsor junior women in the field.
• Promote proactivity by candidates to promote themselves and invest in relationships with appointors, seek out leadership opportunities, be visible, demonstrate required qualities, network, find mentors.
• Promote positive work culture, offer flexible hours, mentorship, sponsorship, training, consider gender neutral terminology, and champion and promote women.

Stepping up

Following a series of meetings with around 40 family law professionals in October 2021, Katherine Landells produced a Best Practice Guidance for Private FDRs document, which is essential reading for all family law practitioners.

Solicitors are often responsible for making Private FDR proposals and so it is vital to ensure that the shortlisting is inclusive and non-discriminatory. Being conscious about the choices that are made and be aware of the potential for bias will assist us all to put forward more inclusive panels. Many firms now offer unconscious bias training which is an excellent starting point, but this goes beyond ticking a box by attending one course.

Chambers also have a role to play in ensuring that a diverse range of individuals within their set are being put forward and that they are shaping a culture which encourages all members who wish to do so to develop their Private FDR practice (and are of course developing their practice in a way that suits them, which goes beyond the Private FDR point). Gathering data around the appointment of Private FDR evaluators and being transparent around diversity and inclusion, to ensure there is accountability, will also help to promote and monitor improvements. Positively, some progress is already being made. Data from 29 Bedford Row suggests that Private FDRs before a female evaluator from their chambers have increased from 16.44% in 2021 to 28.85% by September 2022.

Improving how we communicate and our language around Private FDRs

The Private FDR Best Practice Guidance highlights the importance of being aware of how we communicate about Private FDRs with clients, colleagues, and our counterparts:

(1) Be conscious about the language used when describing the hypothetical judge or evaluator – use gender neutral or alternative references (the judge, the evaluator, they).

(2) Explain to clients that that the job of a Private FDR evaluator is to try to eliminate all personal subjectivity, to establish what are the range of likely outcomes, and to indicate where the judge would be most likely to fall, within that bracket, at a final hearing.

(3) Be objective about what qualities you want your evaluator to have and resist making assumptions about an evaluator’s personal views. No evaluator should allow their personal views to cloud their judgment when it comes to giving their indication.

(4) Share knowledge and experience of Private FDR evaluators with peers so you can be confident when recommending someone to a client.

Changing the way we approach Private FDR selection

It should be standard practice that any list that is put forward is diverse. As Matthew Richardson put it, the Resolution National YRes Committee has a simple requirement for no one-gender panels11 – something that can easily be mirrored when it comes to Private FDR selection.

Paragraph 15 of the 2022 FRC Efficiency Statement12 states that, where there is to be a Private FDR, the nominated evaluator will be identified in the order made at first appointment. If the evaluator has not been agreed in advance, details of the proposed evaluator, including fees, should be brought to the first appointment. If the identity of the evaluator cannot be agreed, the court will resolve the issue.

When put on the spot at court, it is easy to put forward the first name that comes to mind, someone perhaps both counsel will have experience of. It is therefore important for solicitors and counsel to be prepared – to do some homework, carefully look at a selection of names and prepare a balanced list of options.

In cases where judges need to resolve the identity of the evaluator and are presented with a list that is not balanced, and perhaps contains three of the ‘usual suspects’, it is imperative that they challenge the legal representatives on the choice put forward. This will impact in two ways – first, it sends the message that presenting anything other than a balanced selection is not accepted practice, and secondly, no lawyer will want to be pulled up by a judge for failing to consider diversity within their panel in front of their client!

There is passing reference to Private FDRs in the Family Justice Council, ‘Financial Dispute Resolution Appointments: Best Practice Guidance’.13 A paragraph within the guidance drawing attention to the importance of presenting a diverse panel of evaluators is another route of encouraging change.

It should be a rule (spoken, until it can become unspoken) that we should all be presenting a diverse panel of options to clients and to counterparts when considering who we appoint as Private FDR evaluator.

The Best Practice Guidance for Private FDRs14 sets out an approach which is recommended for application nationally:

(1) Both ‘sides’ to reflect and agree on the appropriate level of seniority for the Private FDR evaluator (be that senior solicitors or counsel of all levels).

(2) Identify a window within which the Private FDR should take place.

(3) Obtain client, solicitor and representing counsel’s availability for that window.

(4) Agree which party is to be responsible for drawing up the shortlist.

(5) The shortlisting party to obtain a non-exclusive list of potential Private FDR evaluators at the agreed level of seniority available on that date.

(6) The shortlisting party to propose at least two potential evaluators from that list, which shortlist it is expected should contain at least one individual of each gender.

(7) The selecting party to choose an evaluator from that list. If the list does not contain at least one individual of each gender and no compelling reason has been given, the selecting party may propose an alternative shortlist which does contain at least one individual of each gender from which new list the evaluator may then be selected.

Male champions

Male leaders have a significant role to play in achieving gender balance across all areas of our professional practice:

‘The obstacles and barriers faced by women are not always known, consequently gender diversity measures can be seen as unfair. Men who build awareness of these issues can, for example, ensure that women can be more systematically and actively included’15

In the Private FDR sphere, male barristers can play a positive role by championing their female counterparts to achieve their potential, to put themselves forward as Private FDR evaluators. Male clerks can advocate for a choice made from their female barristers, ensuring that women are given as options in response to enquiries about available Private FDR judges (even if the enquiring solicitor has not suggested this). Male solicitors can ensure that they are putting forward balanced panels for selection, and not just selecting names of male barristers who they know, get on well with, or have instructed historically.

Supporting our female practitioners to maximise their potential

‘Is this Private FDR “judging” something that you could be doing?’ my other half asked me when I was mulling ideas over for this article. ‘Oh well, yes, I’d love to, maybe say in another 20 years when I’m more experienced…’ I answered, without thinking (by which point, I would be nudging 60).

Why did I still not feel that such a role was in my reach sooner? Probably the same reason why I would not put myself forward to become a Deputy District Judge – I’m not ‘good enough’, I don’t have ‘enough’ experience, ‘enough’ confidence. I’m a female, state-school educated first-generation lawyer and a part-time working mum of a pre-schooler.

We all have a role to play in enabling our junior female colleagues to maximise their potential, and to be positive female role models, to ensure that they feel ambitious, engaged and inspired on their chosen career path, and to see that the variety of roles available within our profession are just as open and achievable to them as their male counterparts. To quote Billie Jean King, ‘If you can see it, you can be it’.

Final word

The issue is of course not limited just to gender equality within the realm of Private FDRs. Indeed, this article only just touches the surface of the issues with diversity which are so endemic within the system we operate. The problem runs deeper still.

It is easy to put your head down and plough on with work in the same way we always have done and never really stop to question how we approach our practice and how our practice area operates. If we do not all take time to stop, challenge ourselves, our own unconscious biases, and the approach of others, then change will never happen.

We should be applying the same thought process in our choice of counsel for our case, selection of an evaluator for early neutral evaluations, arbitrators, mediators, divorce coaches, financial advisers – in fact, any appointment where we have discretion and who we use is a matter of choice.

On a wider note, family lawyers are withdrawing from the Bar and from private practice at an alarming rate. Family law has the potential to offer a multitude of different practitioners a diverse and bespoke career. If we are to ensure that our future generations of clients have access to evaluators, adjudicators and representatives who represent our diverse society, we all need to be playing our part in ensuring that support is provided at all stages of the profession. This is particularly so regarding the junior lawyers, to ensure our promising stars of the future are not overworked, underpaid and burnt out by the system and the failures of those who have gone before.