The Next Big Thing to Improve Family Law

 

In this blog, FLiP Director James Pirrie unravels some of the journey that the progression of family law has seen over the years and discusses what is perhaps needed for the future of family law. James also provides an explanation of some of the processes that can be offered to an individual going through a divorce or a separation.

Pacing – process – people

As our ready-guide on process for clients goes live (found here) I am reminded of that mantra for clients “if you can only get into the right process with the right people at the right time you have your best chance of the good outcome.” 

There is never one perfect process, but I have spent a lot of my forty years in family law, trying to find the process that can enable clients to reach good outcomes, reaching out further along that belljar continuum (however you conceive of that whether it is about poverty/ wealth, power/ co-operation or complexity) but also having the sense that coming right around the corner should – surely – be something new and better that will enable us to serve our clients in a whole new way.

The optimal process

Yet we are still not there.  The recent arrivals of Together (see FLiP Together here) or Settle (see FLiP Settle here) provide new models that will work well for some but there are no doubt improvements that we will happen across.  In August, we had a meeting with some fantastic family lawyers from a range of firms, on whose shoulders the responsibility for the next big thing will – in time – fall.  What thoughts are there to share to help promote its happening?  As Pasteur said “chance favours the prepared mind”.  What is it that we need to think about so that the chanced-spark of a new way can properly light a new way forward for us all.

First we might look backwards: it can be hard to spot some of the break-through moments we have had in family law because they melt so quickly into normal.  It is hard to imagine family law without them:

1. Where there is a norm of litigation rather than constructive dialogue, that inspiration that saw the birth of the Solicitors Family Law Association in 1982.
2. Mediation is our stock in trade, incredibly it was the same person who did so much to establish it in the family law field, John Cornwell.
3. It was only in the mid 80s that systemisation and information packs really took hold, how would we cope without that today?
4. The pilot procedure of 1996 was truly ground breaking.  To come up with any of   1. a standard form asset declaration  2. continuity between hearings (so that cases were pushed through and out the other side) or 3. the financial dispute resolution hearing would be astounding, that they all arrived together was utterly revolutionary.
5. The parenting after parting movement in 2007 onwards has been subsumed into normal but at the time children were more commonly ignored or litigated over; holistic approaches through the lens of children’s needs was a significant new departure and connected the legal profession up to a whole range of the not for profit organisations in a way that had never happened before and has built their skills and improved outcomes for children beyond measure.
6. Arbitration was seismic, the opportunity to privatise your dispute and run it on bullet train speed rails against the norm of the slow march to court should have changed our world for the better again, that we still have not  – apparently – notched up even 600 arbitrations in the 11 years since it started is beyond comprehension.
7. I appreciate that for many (not me) collaborative fell short of the hopes so many had for it.  But at the very least it brought  into the mainstream use of counselling and financial experts which opened the doors for significantly improved solutions for clients.  It also gave birth to the private FDR.

Challenges

There are challenges in finding the spark and its taking hold.  In the wide open prairie of family law it may feel that a lot of the most-needed changes have happened already.  But isn’t that always the way it will feel when we simply cannot imagine what is possible.

It probably doesn’t help that now we specialise from early on.  An easy route to creation is fission or synthesis between established models that are working well and which create an exciting union, from the best of both.  Where family lawyers so often specialise straight out of traineeship we simply don’t have the opportunity to experience these alternatives that might fuse with family law norms to create something new, in the way that once was normal.

Our firms are perhaps less well resourced to embrace the new than was once the case.  When FLiP brought over collaborative from America in the early noughties, it was with an open cheque book, firms are increasingly struggling to find the resources to fund what may be needed.

There is another element of course.  Working out what separating couples need is technical and challenging – it is hard for those outside the profession to know enough to create the system that fits.  But when it is us on the inside trying to create change, the problem we have to overcome is that we are partisan – it is difficult to have enthusiasm for change that does not serve our self-interest – particularly where the change requires the discipline of internal transformation.

The right mindset

And yet surely we know that the change that works can only come from that place of altruism, where we are authentically seeking to make it better, more for others than ourselves.  Many of those reforms described above had the potential to devastate the work that lawyers were happily charging for at the time – yet we rolled with it and arrived at a place where we were doing more meaningful work, delivering better outcomes for more people.

Secondly, the big changes will not happen behind closed doors (someone furtively seeking to give their own firm a market edge).  On the other hand transforming the entire jurisdiction is too big a leap.  We can create change within a self-selecting community.  Co-creations are generally better thought through and longer lasting.  Further given that family law changes so fast and that anything anyone creates is almost instantly spotted and is always copiable, we would do better to create an innovative and supportive community across our firms.

Thirdly, we should think of family law types – or segments – we are unlikely to come up with the innovation that is going to solve it for everyone, our aspiration should be to find that things that creates a real difference for a type of client or situation.

Fourthly we must avoid thinking outwards from our court process – however improved it may become over the last years, it is still the catch all that must manage any case and so is bound to be a model that is lumpy and slow.

Setting the frame

We might instead think about client needs.  If we conceptualise a perfect circle comprised of arcs – we might arrive at something like this (click here) as the components that must be addressed by our new improved process.

Additionally/ alternatively we might think of the elements that work well in our parenting cases that don’t exist in our financial cases (and vice versa) to identify where surely there is an unmet need that might be addressed by a new way.  For example, see here.

It seems strange that family law has such a wealth of options for resolving financial questions but awning gaps when it comes to parenting. But of note too that we have no real finance-alternative to the SPIP.

FLiP’s recent success has been the development of Settle which harnesses together three professionals:

• The need to manage the relational divorce being managed through counselling support
• The nuts and bolts issues being addressed in integrative mediation (with all the relevant experts from pensions, to company valuers and in particular financial planners); and
• With the structure being underpinned by the certainty of outcome provided by arbitration if agreements can’t be reached.

We have been finding that because it is porous and flexible that it can stands up more robustly to the challenges that an individual family presents.  “Together” can seem more fragile with its tight fit around the advised outcome.

So we are not there yet but here at FLiP are definitely looking forward to the next big thing.