Collaborative Practice, Dispute Resolution, and Mediation in 2023
Family practice is changing now more rapidly than it ever has done before. Just imagine before March 2020, when the vast majority of court hearings were face-to-face, where online mediation and collaborative practice was rare, and the Family Mediation Council would not allow mediators to conduct mediation information and assessment meetings by Skype or Zoom, save in the most exceptional circumstances. No-fault divorce has been approved by Parliament and was expected to be available for practical use from April 2022. This may lead to a reduction in the number of people thinking they need advice from a solicitor to divorce. The pandemic has us mainly working from home, almost all court hearings are virtual, and clients are not bothered at all that they Zoom with us in our casual clothes (smart causal of course) and rarely set foot in our office.
Pros and Cons of Technological Developments
Although the pandemic has forced change, it is not necessarily changing for the better. Whereas virtual video hearings work very well in the higher courts where the judges and advocates are used to the technology, searching bundles and preparation for virtual hearings, that is not always the reality for many in family courts at the lower level. Here, already crowded lists can become dysfunctional because not all documents have been updated to the virtual court file, emails from the parties have not been forwarded to the judge and many individual participants struggle with the technology and cannot search through a 200-page bundle on their iPhone. Those utilising the court system directly with the judges have a very different experience to those who have to proceed through the court office email. We have a two-tier system here, those with the technology, know-how and connections and those without.
But family practice was already changing anyway. Advancements in technology have meant that more and more dealings with our clients are systems-based. Comparison websites and TrustPilot are big drivers for attracting clients. What is clear is that the vast majority of clients do not want to embark upon a court process and are not willing to pay for full representation in that court process.
Out of Court Dispute Resolution
A mixture of the delays with the court and a better realisation of how the arbitration process works means that arbitration in both financial and children matters is increasing. More and more barristers and senior and retired judges are being asked to provide early neutral evaluations or private Financial Dispute Resolutions and the feedback from clients of arbitration and Early Neutral Evaluation is very positive. The reality is that arbitrators and evaluators tend to have more time to apply to the process in terms of preparation and delivery than our poor judges do. Mediation continues to be popular and with successful outcomes but is still not utilised as often as it should.
Resolution, the organisation representing family practitioners, has ongoing drive to prepare and train our members in the ever-evolving family practice world. Not just the black letter law training but the skills training that is necessary to attract clients, be a more effective negotiator, a mediator or collaborative practitioner.
Client-Led Resolution Revolution
At the end of the day, it is the clients that are choosing how they want their relationship breakdown to be dealt with. They are far more price savvy, but also want to find ways in which they can resolve issues constructively and fairly but well outside the court process. This client led revolution has meant that there are challenges for Resolution members. We must adapt our practices to meet these client needs and make our services more attractive workable and affordable for clients. MIAMs can now be conducted by Zoom and Skype. Resolution has further developed hybrid mediation which is becoming immensely popular but also practical. Hybrid mediation particularly works where the parties find it difficult to be in the same room together, when they get stuck in negotiations and where the involvement of other expert professionals, including the representing lawyers are actively involved in the process. Hybrid mediation has flown since the pandemic, with separating couples having the benefit of experts in their field being able to help resolve cases directly and effectively. Experts such as therapists, accountants, valuers and IFAs have been used.
Collaborative practice came from the USA to the UK in the early 90s and was adopted by Resolution. The premise with regard to collaborative practice is that both parties commit to resolving issues out of court and in a series of round table meetings with their lawyers present they seek to resolve issues concerning the children and finances. Most or all of the discussion takes place within the meetings and there is little or no correspondence. Collaborative practitioners are specifically trained in the process and use a variety of skills and techniques to help the clients achieve a sensible workable solution. Collaborative practice is attractive because the client not only has the support of someone in the meetings but a lawyer there to advise them too which contrasts with traditional mediation where the lawyers generally are not present.
Resolution governs collaborative practice in the UK and there are presently around 1000 accredited collaborative practitioners. However, there has been concern by a large number of members that collaborative practice is on the decline with difficulty in being able to encourage clients to take up the process and often solicitors for the other party either not accredited or not willing to engage in a collaborative practice. Some collaborative practitioners report they are doing less collaborative work and others none at all. Some fear that collaborative practice is mortally wounded.
Reinvigorating collaborative Practice
Resolution and like-minded practitioners are very keen to reinvigorate collaborative practice. It can be the most satisfying and dynamic way to resolve family issues and personally gives me the most satisfaction of all the processes. The Dispute Resolution Committee and the Collaborative Working Party (CWP) have last year published a revised participation agreement. This is the agreement that governs the parties and their lawyers within the process. The revision of the participation agreement is most welcome. because the existing agreement was quite out of date. The CWP has worked very hard on this as indeed they have on many other inspirational and proactive marketing ideas. The new participation agreement makes several important changes and in particular:-
- It allows the flexibility that we now need whilst conducting collaborative practice remotely.
- It allows for the first time for the collaborative practitioners in a case to instruct either a solicitor or barrister to provide an early neutral evaluation of a series of points or indeed refer issues – including the whole issue to arbitration. Such a course would only take place when the parties were particularly stuck on resolving issues, but it might be for example the amount and duration of maintenance; the extent to which inherited and other non-matrimonial property was required to be used for needs.
We hope these changes prove successful. We would also like to consider other ways in which collaborative practice can be made more attractive to the lawyers and particularly the clients.
The ‘disqualification clause’
One issue that keeps coming up for discussion is whether or not it is appropriate to retain the ‘disqualification clause’. Presently the parties are required not only to make a commitment to resolve issues out of court but to take a step further and they are required to sign a document that obliges them to transfer to new solicitors if they issue court proceedings for anything other than a consent order. The inclusion of the disqualification clause is a rule, but it is one that Resolution can change. The disqualification clause is cited by some practitioners as a reason why collaborative practice is used so little.
Other practitioners are keen to retain the disqualification clause. Several practitioners believe that the disqualification clause is a fundamental pillar of collaborative practice. It is the glue that binds the clients and the lawyers into the process, meaning that it is not only more likely to be successful, but also prevents the easy threat of issuing proceedings if a person does not like the way the discussions are going.
There is also anecdotal evidence that many people are reluctant to admit that they do not include the disqualification clause because they fear that disciplinary action will be taken by Resolution for not including the clause. That may well be a fear, but I can confirm that Resolution has never taken such action, nor do I think they ever would.
Other arguments are that it is sometimes just not possible to assess at the outset of the case whether or not collaborative is appropriate, particularly where disclosure has not been completed and there are concerns that one party may not fully and frankly disclose their financial position and that until disclosure has taken place it is too early to assess whether the case is suitable for collaborative. Also, many clients are recommended to Resolution members because of their reputation and all-around skills, and not necessarily just because they are a collaborative practitioner. That client does not want to lose the lawyer that they have been recommended and will have built up a significant degree of trust if proceedings have to be issued. Perhaps, also the practitioners are new to each other and have not worked together before and maybe there needs to be a bit of feeling the way before deciding that you can work collaboratively together.
Presently the situation is unsatisfactory in the way practitioners who do not include the disqualification clause are viewed by some. Take as an example a Resolution member who is collaboratively trained, embarks upon a collaborative process with a collaboratively trained colleague and a separating couple. Within that process there are initial telephone calls and meetings that establish anchor statements, there are four-way meetings and all commit to the principle that we wish to resolve issues relating to say children and finances without utilising court proceedings. The collaborative practitioners explain to the clients that the collaborative process is a state of mind and an approach to working on a without prejudice basis and collaboratively to resolve issues. They have a series of meetings and issues are resolved and a consent order presented to the court. The clients are happy with the process as are collaborative practitioners who are satisfied that the clients have achieved an acceptable outcome. However, they did not sign a participation agreement with a disqualification clause in it. The way our rules stand at the moment and the current participation agreements and guidance appear to state that they are not acting as collaborative lawyers. They are not engaging in a collaborative process and they cannot claim that this case has been dealt with collaboratively. To call this simply ‘round table’ discussions is not correct because of the process that has been followed and the training that has been applied. Some practitioners seek to call collaborative without the disqualification clause ‘principled round table’. This is worse, not only does it ignore the collaborative focus of the process, but implies that any other process conducted is not principled.
Is an Exclusion clause essential?
At the end of the day, I respect and understand the views of those who believe that having an exclusion clause is a powerful tool and a major commitment from all involved in the process to avoid court. However, even though I may include it in about half the collaborative cases that I do I do not personally think that such a clause is essential. Indeed, my view is that the insertion of the disqualification clause should be optional and that it should be the decision of the clients as to whether it is in or out and those clients make that decision after having the advantages and disadvantages of the clause explained to them and confirmed in writing. That is a personal view and, it is not the view of Resolution’s National Committee or the Dispute Resolution Committee who have not discussed any such change. Having a client-focused approach to the inclusion or not of the disqualification clause may indeed provide a greater level of flexibility and in turn attract more clients to the collaborative process.
Changes in Family Law
Changes are happening across our whole family law market. There are changes in how relationships and families are made and ended. It would be to my mind better for family practitioners and more importantly, the clients if the scope of collaborative practice was widened and Resolution was able to make the training in such processes to be easier, more flexible and adapted to a wider family skills base so that working collaboratively becomes the basis for most cases where it is appropriate to do so.
Whatever, mediation and collaborative practice offer the very best way to resolve the issues of separating couples rather than the very broken, underfunded and demoralised court service.
David Emmerson OBE, collaborative practitioner, accredited and hybrid trained mediator, deputy district judge specialising in finance and children cases.
Chair of Resolution’s Dispute Resolution Committee
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