Alternative dispute resolution: an evolution in family law

Mediation|December 31st 2014

When I look back over the last 12 months, I think the most striking change has been the increased interest in what used to be called “Alternative Dispute Resolution” or what is now simply called “Dispute Resolution” – dropping the word “Alternative” is an attempt to bring it into the mainstream- including mediation and collaborative law. In this post I would like to consider these two different routes, each of which has its place on the menu of options for resolving family disputes.

The first and the oldest route is mediation. In 2010, we launched a sister practice called Stowe Family Law Settlements LLP through which our mediation work is run and this year has brought an increased number of mediation cases through our doors as the Government’s reforms to the legal aid eligibility criteria for family law issues has taken its toll and the number of potential litigants in person has increased.

There are now many options and the traditional route of going to court to sort out financial issues or arrangements for your children is often regarded as being the last resort – apart from those situations in which emergency steps need to be taken to protect a person from harm, seek urgent court orders in respect of children or prevent assets from being dissipated or hidden.

With the withdrawal of legal aid for most family law issues, there has been a huge increase in the number of litigants in person. The most recent statistic is that 28 per cent of cases in court no longer have lawyers involved. This is quite simply because those people cannot afford the costs of legal representation following the withdrawal of legal aid and the financial difficulties we have all endured over the last five or six years. As a result people are looking for quicker and cheaper alternatives.

When I see a client for the first time, I explore all the different routes to identify the most suitable option. These include mediation, collaborative law and family law arbitration. These all have their advantages and disadvantages, in terms of cost, speed, effectiveness and outcomes, and – I would advise readers to discuss each option with your solicitor before making any decisions. The best way to picture these options is to consider the financial settlement or the future arrangements for your children to be your destination. You then have to consider which route you want to travel along to reach that destination.

Mediation

This has been around for a long time indeed. I was one of the first family lawyers to qualify as a mediator back in the 1990s. But the truth is that for a long time it has failed to capture the public’s attention as a route to follow. However, following the government’s recent change in policy on family law applications and the requirement that nearly everybody wishing to -take an application for a financial remedies order or a child arrangements order to the courts must attend a Mediation Information and Assessment Meeting (called, rather catchily, a “MIAM”), mediation is now very much at the forefront of resolving issues on divorce.

The key features of mediation are:

  • It is entirely voluntary. Whilst the government can compel people to first find out about mediation by attending a MIAM, they cannot make them continue.
  • It is confidential. The discussions you will have to try to reach agreement are “without prejudice” and cannot be discussed in Court should you sadly end up there in the future. Being off the record encourages you to show all your cards and encourage settlement.
  • The mediator is completely neutral. He or she is not there to take sides. They may as part of their role try to help in resolving breakdowns in communication but they are not there to say that one person is right and the other is wrong.
  • The mediator is there to assist you to reach an agreement. They cannot give either of you specific legal advice but will give you general information on procedure or a court’s approach to dealing with the issues you are finding difficult to resolve.

I think one of the biggest problems with mediation at this time is that mediators and solicitors are not working together effectively enough. I take the view as a mediator that mediation is far more effective if the solicitors engage with the process, understanding what has been discussed in the mediation sessions and working with the clients to review documents and explore options between each session. It is more difficult if the mediation clients do not have legal advice and are entirely reliant on the information that you as a mediator impart to them because they have no understanding of the possible outcomes that might occur if the matter went to court . They often have unrealistic expectations and insufficient understanding of any of the legal processes. However it also does not help if a client attends mediation fuelled with high hopes and extreme positions which have been planted in their minds by a lawyer. Just as a mediator can often find more fertile ground to achieve a settlement if both parties are represented by sensible and specialist family lawyers, I do find as a solicitor that mediation can often help where you can see that an issue might be so much better explained by the client directly than via a solicitor’s letter. The personal touch of direct communication, albeit in a more controlled environment with a mediator present to help you sort out the issues that need to be resolved, to prioritise these and to aid in discussions and to help you identify the options can not only help you resolve matters more quickly, it can also be a worthwhile investment for communications should other issues arise in the future – for example in sorting out arrangements for the children.

Collaborative law

I was one of the first lawyers to undertake this course back in 2005, when a new way to help clients resolve their issues on divorce and relationship breakdown came across the pond from the States. It was branded as a better way to divorce, a non-confrontational route. It involved sitting around a table, two clients and two solicitors, attempting to resolve the issues through discussion, all committed to not going to court to resolve their problems.

There are some “Americanisms” in the process. There is, for example, the preparation by both parties of “anchor statements”. These set out the reasons why the parties want to engage in the collaborative process can be used on future occasions if the going gets tough to reflect upon the situation and hopefully bring them back to the desire to resolve the issues collaboratively. Some clients find this a useful tool, others find it a slightly comical and artificial device: nevertheless it remains a key feature of the collaborative process.

The other key feature is the participation agreement – the contract which all parties sign up to with rules on how they will conduct themselves in the process. These include openness, fair-mindedness and integrity, as well as acting without recrimination or blame for the past. Again, these are noble sentiments but they are sometimes difficult to live up to, especially when it comes to trying to ignore the past and focus on the future. One element of the participation agreement that can deter clients is the part which dictates that should the parties decide that the collaborative process has broken down and cannot continue then both sides must engage a different firms of solicitors to represent them in court. This “disqualification” clause which both parties and both solicitors agree to, might seem harsh: after all why shouldn’t a party continue to instruct their solicitor if they want to? But it is a key component of the true collaborative approach and it is the cement which binds both parties and both solicitors to the process. It is intended to make them all the more keen to work in a collaborative way to ensure success.

Unfortunately it can still be the fly in the ointment that deters clients from signing up to collaborative law and it has given rise to the “collaborative-lite” approach which is intended to adopt the collaborative approach of sitting around a table, even the collaborative mindset, while a the same time avoiding the participation agreement and the disqualification clause. To the purist this is simply not collaborative law. In my book, any process which helps parties reach a settlement whilst retaining control themselves rather than handing that control to a Judge has to be a good thing.

A conventional solicitor is trained to represent their client’s interests to the best of their abilities. They argue over the money their clients feel they need or are entitled to, and work for arrangements for the children which their clients feel are in their best interests. As a collaborative lawyer, it is expected, indeed it is required, that I change the way in which I approach a case. I am not there to advise my client alone, to give him (or her) any expectations of what a litigated outcome could be, what their best and worst case scenarios would be and how they should go about arguing their case to maximise their opportunities. Indeed, the first change of approach often seen in the transition to collaborative law is that becomes rare to give specific advice to a client on the likely outcome of their case. Instead we seek to learn what our client hopes to achieve, not just in terms of bricks and mortar, pounds and pence, but where they might want to see themselves in the future for example their future relationships with their children and former partner. Our enquiries in this field are therefore intended to learn about our clients wishes in a more holistic way.

Each party will have their expectations of what they want to achieve, whether in terms of how they divide up their financial resources or what the arrangements should be for their children. They will have their own perceptions of what they think is fair but they will seek advice from a lawyer in the first meeting and base their expectations on that initial advice. This can lead to trench lines being dug and battle commencing. One party might feel that they should keep the house, one parent might feel that the children should always spend Christmas Day with them. As a lawyer, we can advise our client about likely outcomes based on a wealth of experience and training, and we can argue vehemently for what our client wants and whether we consider their expectations to be reasonable or not. Inevitably family lawyers will act for both husbands and wives, fathers and mothers, and so we often find ourselves arguing both sides of a case for different clients in similar situations. We do so without hypocrisy because there is rarely a single answer to a problem.

Our role as a lawyer becomes one in which we are simply trying to protect our client’s perceived rights. Collaborative training encourages us to change our way of thinking. Instead of simply arguing to protect our client’s rights, we should instead seek to consider both parties’ wishes and try to understand their underlying interests – i.e. why are they adopting a particular position and the fears and concerns that underlie the arguments and the positions they have adopted. I have to say it always disappoints me when I come across a lawyer who will take a stony-faced approach to arguing their client’s case without any other consideration. Such an approach is a straight path to litigation, increased costs, heightened animosity and, dare I say, disappointment for the intransigent lawyer and their client.

Another shift in attitude is the way in which the collaborative process works through face-to-face discussion. As collaborative lawyers we encourage clients to adopt the process because it empowers them to take an active role in the discussions and the decision-making, rather than taking a back seat and letting their lawyers write the letters, construct the arguments and run the negotiations. We are taught to lead from behind and trust our clients, with guidance when needed, to make those decisions which will enable them to shape their own futures. A lot of work is done with our clients outside the meetings, as well within the “four-way” round-the-table sessions.

More often than not, an experienced family lawyer will know what the outcome will be: if not a definitive answer then at least something within a range of possible outcomes, taking into account the courts’ discretionary powers to allocate assets and make arrangements in respect of children. We know however that a court has limited scope to be creative. A court cannot impose flexible arrangements for a child, for example – it can only provide a timetable. But within the collaborative process, the parties can reach their own arrangements and can be as creative as they want to be. There is a shift in attitude from just thinking “what would a court do?” to “what options are available in this case with the facts and circumstances that may be unique to this family, and what they are trying to achieve?”

One phrase I particularly liked in the training I underwent was that collaborative lawyers should seek to “do no harm” and “leave no footprint as best we are able”. We are taught not to just impose our will onto separating families but to guide clients to reach their own outcomes – as they are bound to be longer-lasting.

Photo by Cocoabiscuit via Flickr

Author: Julian Hawkhead

Julian is Stowe Family Law’s Senior Partner and is based in our Leeds office.

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