There Are Two “Keeping It Out of Court” Consultations That Need Your Urgent Attention

Published: 12/04/2023 21:43

I’m Jo O’Sullivan and as a non-court family law practitioner, I declare an interest. Last year I published a book called (Almost) Anything But Family Court (edited by Only Mums&Dads). This is the mantra that dominates my view of this area of law, and it’s not just me. The President of the Family Division (Sir Andrew McFarlane) wrote the foreword to the book and he agrees – he’s mentioned the book on Radio 4, in the House of Lords and in various speeches across the jurisdiction. Having read the government’s recommendations in their consultation, it seems to me that they agree too.

The government’s massively successful Mediation Voucher scheme is just the start of what I hope will be their new revolutionary road.

An unhappy client and an unhappy you

Your clients are very likely to be dissatisfied with the traditional way of practising family law and especially the court process; in the end, they are probably a little bit dissatisfied with you too. A straw poll of family law friends found that they are unhappy and disgruntled too. They told me how sad they were that they can’t help their clients because the courts are in such disarray. They told me that their urgent cases are waiting multiple months and even many years for an adjudication.

COVID is not the only blameworthy factor here but rather significant and chronic underfunding of family courts (by governments of every hue). With more cases being issued year on year maybe nothing short of a massive transformation is needed. A revolution in the way we work, the way we advise clients and the way the family law ‘system’ operates.

Now let’s focus on these urgent consultations.

Deadline 12 June 2023: Government consultation – compulsory mediation etc

There are three main themes to this consultation:

  1. Supporting parents to resolve issues: what resources, guidance or support the government can provide which will, in appropriate cases, help more separating families to resolve their disputes without resorting to court? To consider introducing a requirement for parents/carers to attend a co-parenting programme, where considered suitable.
  2. Agreeing child and finance arrangements through mediation: by introducing compulsory pre-court mediation and what this might look like for separating parents or others who cannot agree child or finance arrangements. On what circumstances this requirement should apply. On how to get the mediation sector ready, seeking views on what steps are needed to increase the sector and whether additional accreditation and training is required.
  3. Accountability and costs in court proceedings: on how costs orders could be used to enforce the requirement to mediate and to discourage parents/carers from unnecessarily prolonging court proceedings if they reach court. On how to improve the court fee structure to better reflect costs of coming to court and remove disincentives to people for attempting to resolve their dispute outside of court.

An inquisitorial system

I’ve long hoped for a more inquisitorial system for all family law cases. Here the government is proposing that the most difficult cases, including intractable cases, complex cases and those where domestic abuse is a feature (as being trialled in Dorset and North Wales) are treated in this different way. I agree we need a change of approach to minimises the acrimony that our adversarial system encourages. Such serious cases are likely, and I’d say rightly, to fall outside the mandatory mediation route.

Compulsory SPIP (or similar)

I agree with the government’s idea, set out here, of compulsory attendance at separating information programmes (SPIP’s or equivalent); attendance even before attendance at the proposed mandatory mediation. Too often parents don’t understand what they are doing or why. Such programmes give parents much needed information and encouragement.

Mandatory mediation

The government’s intention is that most private law children and contested financial remedy cases attend compulsory mediation; some limited but obvious exemptions will apply.

My view is that this the change we so desperately need. I may be a lone voice. I’m an accredited mediator but the view of those that trained me and almost all of the literature is that mediation must be voluntary. But does it? Why is there are automatic right of individuals to bring a case at court but not an automatic obligation to try mediation (or other non-court process) first? This seems to be an imbalance to me which is why things are going awry.

The Australians have had mandatory mediation (with similar exceptions) since 2006. Their experience is that it’s been successful enough to keep going with it nearly 20 years later. Norway and New Zealand have similar schemes. Why shouldn’t such compulsion work for us too?

I say it’s time to stop being so precious about mediation; I no longer feel that its voluntary nature is what makes it successful. We mediators need to think hard about the way we work and how we can incorporate this new way of mediating. We will need to upskill to cope with reluctant participants – but frankly we often have one client that’s not all that keen!

Mediation is successful in around 70% of cases – I don’t see why it would stop being successful simply because of compulsion.

Costs orders

It’s proposed that those who don’t try mediation or properly engage in it will be held to account by the court via costs orders. I wholeheartedly approve of this approach. For too long individuals have issued their proceedings without any attempt at other ways of sorting things out. We desperately need this ‘stick’ if we are to change the way we do things.

I suppose the carrot would be a new way of dealing with the really difficult cases of DA and intractable situations with more court time and more inquisition by the judiciary.

Working with others – a supportive system

I would add that there ought to be free (and/or subsidised) support for separating couples via therapy and counselling. Please suggest this in your responses. So much of what goes on for our clients and played out in court is simply a ‘rehash’ of their rehearsed arguments and hurts. Often mediation can help with that. But mostly couples need more focused assistance to help them emotionally move on. If the government don’t end up funding it I suggest we set up our own hubs of support – the way that Kent and Devon have done; with many other areas hoping to emulate them nationwide. They call these hubs SSFAs and here’s Kent’s website for you to peruse:

Such hubs mean that family law professionals can happily collaborate with those already providing such support services. Maybe you could start something in your locale?

Free or funded legal advice scheme BUT with a difference

This is not a question asked of us in this consultation but I’d like to see a funded or free legal advice scheme (remember legal help or green form anyone?).

But not the ridiculously positional legal advice that some clients receive. Certain family lawyers provide this advice, which although complying with their duties as ‘lawyers’, is distinctly unfit for purpose.

What clients need is advice that’s sensible, whole family focused and does not try to ‘win’ something for their client. We need a different sort of practitioner – one that is solutions focused. I’m working on a proposal with Helen Adams (an accredited mediator and leading member of the Family Solutions Group) to call for two different sorts of practitioner and professional tracks – here are her words:

‘i. One track is for family justice. This track needs legal professionals who can represent those who need access to the family court, for protection or urgency. It is all about access into a justice system to safeguard a person or asset, and the specific legal training and skills required.
ii. The other, separate track, is for family solutions. This track needs professionals whose focus is to support a family to find a solution, not to win or to “fight for a client” but to see the wider needs of the family, to bring in other professionals as needed (e.g., for child consultation) and to promote positive futures following separation. The legal professionals on this track would need skills and training which are distinct from the legal justice route, and other professionals who already work in the field of family solutions would be included.’

MIAMs and other questions

The government also seeks more input from you on MIAMs; accreditation and price fixing (no thanks!) of mediators and more. You may respond to the consultation by email or online.

Deadline 11:59pm on 25 May 2023: Family Procedure Rule Committee: Early Resolution of Private Family Law Arrangements

The second but more urgent (in time) consultation is the Family Procedure Rule Committee consultation on Early Resolution of Private Law Family Law Arrangements.

As you’d expect from the FPRC you are being asked to consider proposed amendments to the current rules. This is a general seeking of views in advance of any redrafting of the FPR.

MIAMs (Mediation, Information and Assessment Meetings)

This is a much-needed review of exemptions to attendance at MIAMs and I wholeheartedly support them all. As noted above there are simply too many ways for lawyers and litigants in person to avoid a MIAM. Many of the committee’s recommendations relate to the huge availability of online MIAMs, so there’s no need for the current geographical or residence exemptions.

I would also note to the rule committee that it is no longer seen as good practice for a joint MIAM – given this is a step that may ensure the safety of those where DA is a feature. It’s always better for MIAMs to be individual.

NCDR (Non-Court Dispute Resolution)

The committee seeks your views on NCDR; in particular that the court has the option to adjourn in favour of NCDR. They define NCDR as ‘methods of resolving a dispute outside of the normal court process, for example by mediation, collaborative law, private financial dispute resolution appointments or family arbitration’. I would ask that letter writing (correspondence) between lawyers be specifically excluded from the definition of NCDR.

I disagree with the recommendation that there be no compulsion to use NCDR. There is a recommendation about possible costs consequences of not engaging in NCDR or the opportunity to use ‘conduct’ in court arguments; conduct being not engaging in NCDR. There is also a suggestion that courts should be asking parties why they have not yet tried to engage with NCDR.

Surely, we need to really beef up the rules that are pretty toothless at the moment? This is a golden opportunity to make NCDR a new normal.

Our civil law friends are accustomed to this. No civil law practitioner would dare to bring a case without first fully using NCDR. Why is family law seen so differently? How have we been allowed to get away with this for so long? The answer is of course, is contained in the rules. Without compulsion, nothing will change.

Recommendations in this consultation, in my opinion, do not go far enough. It’ll be business as usual for many practitioners (with just a few administrative hoops to jump through).

I think the Judiciary would help the NCDR cause if they had appropriate rules to enforce. How often do we read cases where the Judge notes the ridiculous nature of cases brought and the astronomical legal fees? New rules could create a new environment in which we and the judiciary would operate. I don’t agree that we ought to spare judicial time on this – instead this is what judicial time ought to be spent on. It’s time for the FPRC to be brave.

There are 18 questions to answer – some are ‘yes, ‘no’ responses and some need narrative explanations.

A plea – let’s ditch the expression NCDR and remember that Language Matters

Can we stop using the word ‘dispute’ – Non-Court Dispute Resolution. Or even worse DR. I suppose DR is better than ADR – which indicated that DR as an ‘alternative’ to the ‘real thing’. Let’s not forget that ‘Dispute’ is a BIG word. Aren’t most couples simply trying to find their way to a solution? Can’t we just call this ‘Non-Court Solutions’ or something akin which would be more positive.

While I’m moaning – why is there a section in the journal published by this site called ‘DR Corner’? Firstly, let’s ditch DR for Non-Court Solutions and secondly let’s bring it out of the corner. It’s not a dunce or a side dish – given the state of the courts it ought to be front and centre and the main dish.

Language is really important; language affects the way we think about any situation. I am disappointed not to see a change in the rules or at the very least a consultation from the FPRC emanating from the report called ‘Language Matters’ from the Family Solutions Group. We desperately need to change the way we describe and talk about our cases. The way we talk to our clients, to each other and to the court. If you haven’t had the chance to do so then read the report and start adopting its suggestions:

Language Matters report

We in the family law profession have an ethical duty to change the way we work. Don’t wait for a change in the rules or the results of the consultations.

But in the meantime, whether you agree with me or not – do respond to both consultations. We can all learn from every viewpoint.

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