Good Divorce Week 2022: Is Change in our Court System Needed?

 

We all need a court system that flows well.

Without it, for too many people, there may be no alternative but to put up with what is on offer. That leaves them a hostage to unfair negotiations.  So it is alarming that court backlogs are growing.

Our legal system has faced cut backs and probably now faces more. The answer is not for our courts to stay open longer; they are already operating at beyond capacity.  The whole industry is wrestling with the problem of how we can reduce the number of cases at court that don’t really need to be there: too often the court’s time is being spent on the case that is capable of settlement.

Karen Dovaston, Rebecca Hawkins and I were on the panel at the opening evening at Resolution’s Family Practice conference in Nottingham. We sought to divide up the solutions to this problem into the different river sections. The leading contenders are below:

The lower course and the mouth of the river

• There was strong support for the return of costs orders: that the person who makes the realistic offer at the beginning should be protected from the other’s failure to agree. This would do more than anything to encourage early negotiation and settlement of cases. Too often we find that though we have made a very good offer very early on, the court ultimately shies away from making the costs order that it should to protect our client – because the impacts would be so hard on the refusing party. But we all know that it is only these sanctions that create the imperative to negotiate early and well. Without it, the judiciary should not really be complaining that the courts are clogged up because the strongest tool to unclog them lies unused.
• We dipped a toe into the scary world of reduced discretion: if there were greater certainty as regards what the court would do, wouldn’t more cases settle? Ultimately though there is a risk of cruder solutions (which generally fail to protect the more vulnerable party) all along the system because our non-court processes would be led by whatever crude metrics the court was applying. And then of course you have the problem of what these guidelines would contain.
• We urged the judges to adopt the “part 3 protocols” that would see the judges exploring what efforts the parties had made to settle the case each time the case comes to court, using powers to adjourn for away-from-court dispute resolution to take place. This would see the encouragement of, for example, crunchpoint mediation where cases are settled because of the imminent threat of a court hearing.
• Hand in hand with this must go practitioners doing a better job of helping their judges to be more familiar with these alternatives.

The rapids and the middle course

We saw this stage as being the fast moving point at separation when so often “sliding door” choices are made by families as to the processes and support they will use. What more can be done to remove the norm of reaching out for court when there are so many advantages of reaching solutions by agreement or arbitration?

• The “Mediation Information and Assessment Meeting” is the mediator-meeting that most parties must have before proceedings are issued and when alternatives to court will be explored. We all welcomed the work that has been done by the Family Mediation Standards Board to strengthen the guidance as to what parties should expect in their MIAM and this may divert more of the self-representing parties away from court. So often for the represented party, the MIAM is seen simply as a hurdle that has to be overcome – it might be helpful that it had to be carried out earlier (say six weeks before issue absent emergencies) it would certainly be helpful that there was a stronger norm of both parties attending.
• We considered too whether the proliferation of options was confusing – confusing to the point where parties stick with the default of court. There was strong support for professionals stopping their habit of promoting services and instead listening for needs (and then creating the structure that speaks to those needs). This idea leads to:
• The importance of the complex process option (such as FLiP’s “Settle” where processes bring together different professional skills to address the elements in the mix that stand in the way of closure.
• We also gave thought to:
  • initiatives such as Mediation and Domestic Abuse, where we have had the privilege of working with domestic abuse professionals within the mediation process to find safe ways forward for hard situations;
  • there was a warm welcome for the directories to start doing a better job at celebrating those who avoid the litigated case rather than the lawyer who participates in them (often times the easier job);
  • the norm of holistic working (where the firm that is now FLiP led the way back in 1995, when it opened its doors offering the combined skills of therapists and lawyers).

Upstream

And further from there, upstream; we ask for:

• A minister for families, not a minister of justice;
• The change in our language where many, including my colleagues at FLiP, are leading the way;
• Funding for an online hub that would provide trusted information for clients, centralised resources and videos and local charities and experts. Currently the SSFA leads this initiative; FLiP participates and knowing that there is no money in the state budget, we pressed Resolution to provide funding for this vital service;
• We asked too for Resolution to provide the fairly limited funding that would be needed to get a National Association of Separated Parenting Programmes up and running. A centralised body that would provide oversight and standards and promote awareness for parents of this crucial service could be a game changer: creating the norm of co-parenting over haphazard responses that so many parents have to the crisis of separation.

Inevitably as we approach the source, there is the longer-term hope that by education we can achieve the sort of cultural change that will lead parents and families away from the court and more towards the enlightened approaches of dialogue and agreement that serve everyone so much better.

There is no single solution – what we need is a system that continuously looks for improvement and an industry that holds the well-being of families and children close to its heart.  Let’s see how many of these come into being in the coming year and whether the reservoirs of stagnating cases can start to flow through the system faster.

James Pirrie is a director at Family Law in Partnership. He specialises in complex financial issues and non-adversarial and cost-effective approaches to divorce and separation including mediation, arbitration and collaborative law. He helps clients take control of the issues that affect them, clarifying priorities, exploring all the options and identifying the best way forward. For more information, contact James at E: jp@flip.co.uk or T: 020 7420 5000 or view his website profile here.