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Big ask: Jo Edwards calls for change in culture and attitudes around dispute resolution

As the family law sector sees some great changes, Laura Clenshaw asks Resolution's chair about her thoughts and aims

29 April 2014

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If early dispute resolution is key, what would encourage it?

Obviously, as an organisation, we are supportive of all forms of dispute resolution. In terms of early dispute resolution for trying to avoid court where possible, yes. We are concerned about the potential tick-box nature of this. A lot of what we would like to see to get to earlier dispute resolutions - and it's a big ask - is a change in culture and attitudes, and how separating couples resolve their differences.

As part of Dispute Resolution Week last November, we commissioned a survey of members of the public just to gauge attitudes towards alternatives to court. We were quite shocked because it was very clear that people think that getting divorced or separated is synonymous with court. They don't think about mediation or collaboration. They don't necessarily know what those things are. I think that's a really early hurdle we need to overcome.

Lots of people seem to equate mediation with reconciliation, which are two different things. Lots of people seem to think that the mediator is like an arbitrator who is there to give advice and take sides, and impose an outcome. Perhaps that creates a more negative view of mediation.

It gets difficult because I see new clients and they think that court is the only option, that it's the norm.

Will Resolution be taking on that responsibility of trying to educate the wider public?

You've pre-empted me. I think responsibility for this is from people. It comes in part from government awareness campaigns, and I know that the MoJ and the DWP are trying quite anxiously now to raise awareness of mediation in particular.

I agree that there is a responsibility among Resolution and Resolution members as well as other family law organisations who have an interest in mediation: the Family Mediators Association, NFM, the Law Society. It's a broader responsibility but certainly one that we are very keen to take on and do very much more to promote alternatives to court.

A lot of that presupposes that people will come to a lawyer, that they will come to a Resolution member, and the Resolution member will then tell them about these alternatives to court.

We know that in slightly more than 50 per cent of family cases, you have people who don't have any legal advice at all. So there needs to be more signposting generally.

Do you think the changes make the process clearer and easier for litigants in person, who are making up the increasing number of people using the courts?

My heart really goes out to these people. These huge cuts in legal aid that were made last year have created an almost impossible situation for so many people trying to navigate family justice system on their own.

Processes are becoming clearer. This child arrangement programme, for example, is a clear document. When Resolution was consulted, along with others, about the draft, we looked at ways of making it clearer for litigants in person. We suggested there should be definitions in there, an index.

The new forms are difficult documents for lawyers to grapple with. What chance does a litigant in person have? Although my hope would be that now we have gatekeepers in the single family court, who are looking at applications as they come in. They will provide assistance to litigants in person if they are actively scrutinising the application.

The Children and Families Act is quite a complex piece of legislation. But what I hope is helpful for litigants in person, so far as private law children proceedings are concerned, is simpler labels, which are there. 

It's great there is legal aid for mediation, but the reality is you need some limited legal advice around the mediation process. Clients need to know what their rights are before they go into mediation, know what it is they're aiming for and ideally have some support once they have reached an agreement in principle.

On the subject of the parenting plan, apart from the terminology, what will this process involve for family lawyers?

The parenting plan is an alternative to having a formal court order, and it can be as prescriptive, or not, as the parents choose. In very broad terms, it may reinforce some of the responsibilities which flow from parental responsibilities: what are the expectations of the parents and their parenting, but also what are the arrangements for the child or children as they grow up, who is going to care for them and when, what are the holiday arrangements, etc.

Obviously, the parenting plan rather than a court order is very much flavour of the month in what is being encouraged. Sometimes it takes a little more negotiation around the terms, so whether through mediation, a collaborative process or having a roundtable meeting, they all lead to a parenting plan which sets out what those arrangements are going to be.

Six years ago, we launched 'Parenting after parting' to educate separating parents and the expectations on them, and what they should be doing for their children on separation. As part of that, we've been promoting the need for a good parenting plan, so that there's an education function as well.

As with mediation and alternatives to court, there's quite a lot of ignorance in this area and the general area around sorting out arrangements for children post-separation. For most clients, for example, they still believe that the terms 'custody' and 'access' are in existence - they were abolished in 1991.

Most also believe that they have to have a court order setting out arrangements for children after separation or divorce, whereas actually, there's a no-order principle in the Children Act. In about 90 per cent of cases involved with separating parents, there's no order at all. They just have parenting plans or looser arrangements, and that's it, they can just walk away. The only cases in my view that need to have a court order, where there are more complex issues, are perhaps parental alienation. One parent needs an order which can be enforced.

So whose responsibility is that? The education-type function, making sure that arrangements have been sorted, making sure they realise the expectations from their partner and their child? It's cultural attitude problem and no matter how much, as lawyers, we talk in the press, there isn't 'access' and 'custody' and there isn't 'residence' and 'contact'.

People still seem to be surprised by that, so I think public awareness campaigns by the government, the MoJ and the interested family law organisations are needed.

What is happening with the shared parenting proposals that went through previous incarnations in the process?

The backdrop to this is when David Norgrove did his family justice review, which reported in November 2011. He was very clear that he didn't think there should be any sort of statutory presumption as to an equal sharing of childcare, or anything quite so prescriptive.

He looked at the experiences in Australia, among other places, and found that people start litigating and it wasn't good for children. It was very much government-driven that in the original drafting of what was section 11 of the Children and Families bill, they wanted something more prescriptive. We don't want people to get the impression they are entitled, as a parent, to 50 per cent. When we lobbied for that, we were very clear that it reflected what David Norgrove had wanted to achieve.

What is your priority for other family law reforms?

In terms of our longer-term priority, we hope to lobby the main political parties ahead of the next General Election in that we are setting out the detail of where we think family law reform is required.

Number one, we were calling it 'no-fault divorce'. It sounds a bit clichéd now, so 'divorce without blame'. We still have a system in this country whereby in the vast majority of divorce cases, people start by saying either you've committed adultery or there has been unreasonable behaviour. We say that is at odds with government policy, which is to encourage mediation, other forms of non-court based resolution, when the very first thing you're encouraging a divorcing couple to do is apportion blame.

Number two is a wider reform of section 25 of the Matrimonial Causes Act 1973. When looking at the money claims of a divorcing couple, the courts have a very broad discretion under section 25:2. We say that not only is it not fit for purpose, given the amount of time which has elapsed, it's unclear. It's effectively a lottery. So if family lawyers are struggling to advise on outcome, which we are, what chance do litigants in person stand and how do they know where their claims rightly lie?

As a subsection of that, we spoke to the Law Commission a week before they published their report in February. We support their recommendations as far as they go, but we would like there to be more. We think the time is right for the government to look at wholesale reform of section 25.

By way of piecemeal reform, the Family Justice Council has been capped I know, with producing what meets needs and how you actually meet needs. We support that but we don't think it answers the problem because we question what standing does that guidance actually have? No disrespect to the FJC but are they the right body to be doing it? What standing do they have to do it? Are they going to consult the professionals on the ground about what it should say?

Number three, we will continue to lobby hard for legislation to deal with cohabiting couples who separate and dealing with their financial claims.

Family practitioners are very concerned that internal structures are not yet in place in court to manage the single family court changes. At this time of uncertainty, what are your thoughts?

There clearly has been some delay in practitioners on the ground receiving new guidelines, receiving the new forms. We are all going to be grappling with them, myself included, for a few weeks to come. My understanding is that the courts are going to be sympathetic to that. Changes of this magnitude don't happen overnight and I'm confident we'll all work together to make it happen efficiently.

Laura Clenshaw is junior writer at Solicitors Journal

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