There was a time when doctors were seen as tending to the body, priests for the soul and lawyers for the community, through their role in bringing disputes to a peaceful resolution.
In the early 1980s, the family law profession took a bold step forward, seeking to fulfil their original role, through their decision to de-litigate, so far as they could. Their goals, as the newly formed “Solicitors Family Law Association”, the fore-runner of today’s “Resolution” included the promotion of mediation, placing children at the centre of the decision making process and seeking out constructive solutions through co-operative dialogue.
Over the past almost 40 years, we have certainly seen the build up of complexity in the ways that we seek to help clients. Sometimes – perhaps too often – it has been a bit of an arms race as we have sought to acquire tricks to out-perform the other team and gain advantage for our clients. “Too often” because in many situations, the litigation process that forms the backdrop to our discussions is the problem, rather than the purveyor of the solution. As Mostyn J famously put it in a case in 2011:
It seems to be an iron law of ancillary relief proceedings that the final difference between the parties is approximately equal to the costs that they have spent.
… or to put it another way, if either of those parties had settled even at the low point that was first suggested, then they would have been better off than where the litigation eventually left them.
A similar concept applies in relation to most children-issue cases: where any of the solutions that could have been achieved at the outset would have been better than the predicament that the children and parents are left in by the time they have ground through the long court process to put in place a child arrangements order.
And yet, I worry that as a profession, we may not always be doing ‘best’ by our clients: too often perhaps, solicitors press for the solutions that we think are reasonable and justified by legal analysis and fail to achieve the solutions that could have been reached by agreement and that the parties could have lived with. Such “good enough” solutions might well close the issue and enable the parties and their clients to move forward with their lives. We know too that there are lawyers who really see their role as just gathering data and passing this to counsel to sort in front of the court at FDR/ FHDRA hearings.
But in these troubled times:
- Hearings are so much harder to manage;
- It is likely that the imposed solution will take longer to arrive, because backlogs at court will mean longer waits; and
- Families have much else on their plate – there is an even greater premium on being able to achieve closure.
And so, it is all the more important that the lawyers roll up their sleeves, plug in the tech and really seek out the best solutions and do so now, rather than press on, taking positions that put closure at risk.
It is important too that we are out, visible and available to provide help, support and solutions to those whose relationships are in troubled times. Information and direction to counselling support is one option and for others for whom separation is now inevitable there is a need for closure now – there is no need for peaceful resolutions to wait the passing of this foul virus.
Covid 19 also brings benefits in obscure ways. One such benefit is surely the help it gives us all to help us put things in perspective, focus on what matters and thus just maybe, it enables solutions to be hauled across the line to conclusion.
For advice from our top London family and divorce lawyers, contact us now on firstname.lastname@example.org or by telephone 020 7420 5000.