Joint advice on divorce: an alternative to mediation and arbitration
By:7 commentsApril 4, 2016
From time to time I have had the great privilege of meeting some prestigious academics in the field of family law. They are the people whose opinions count at the highest levels and it’s always a pleasure to listen to those whose opinions are challenging, as they push at boundaries, encourage discussion and try to develop the practice and procedure of family law through academic innovation.
Sometimes I meet such academics at family law conferences. I have frequently had the pleasure of meeting Professor Chris Barton for example, as well as Professor Rebecca Probert. At other times I have encountered distinguished academics at the Law Commission where practitioners and academics meet to discuss their differing approaches to given topics with a view to a potential change in the law. At other times a book launch has been the venue – for example, the book Fifty Years in Family Law, written by a number of academics in honour of Dr Stephen Cretney and launched at All Souls College Oxford. It was an unimaginable gathering of the great and the good at the top of their field, including Baroness Deech. I spent the evening like a first year law student listening to them all. It was an evening I haven’t forgotten and the book naturally is filled with interesting ideas and comment.
Of all the legal academics I’ve met, right at the top of the list, two Oxford dons stand out: Mavis Maclean and John Ekelaar. You can imagine my surprise when they invited me to lunch to discuss the practice of family law in the 21st century. We had a very cordial chat, and I was taken by their enthusiasm for the subject and I remember as I left literally wondering if I’d just dreamt the whole thing..
When their book Delivering Family Justice in the 21st Century came out, I was confident of great things – and I was not disappointed. One particular suggestion jumped off the pages, and it is one to which I enthusiastically say “Aye!”
Back in the mid-1990s, the then Lord Chancellor, Lord Mackay, did his best to reform family law, even successfully introducing new divorce legislation, no doubt spurred on by the same Treasury bods who continue to exert their influence today, unashamedly calling, amongst many other things, for the abolition of legal aid. Divorce reform ultimately failed but he had hit on mediation as a widely accepted way forward.
I enthusiastically jumped on the bandwagon and went so far as to hire the late, great US based ‘king of mediation’ John Haynes to train a number of people at our firm. He was over in the UK at the time and stayed at our home for the week. We had intensive training which I enjoyed very much. I reckoned I could really help the couples who came to see me, and looked forward to the advent of mainstream mediation.
I waited for the couples to roll in, and waited and waited….The rest is history. Mediation never really caught on.
Fast forward to what I will call, without too much exaggeration, Doomsday. On 1 April 2013 legal aid was all but abolished, except for a very few instances including those who qualified financially and sought divorce advice by mediation. Despite all the puffery, the M word remains stubbornly unpopular, even when it’s the only tiny chink of light left for people who do still qualify for legal aid and seek divorce advice.
Why? What’s happened? The government couldn’t have pushed mediation harder. I think the reason for this failure is pretty obvious, when you look closely. Mediation as currently practiced here is antiseptic and sterile. First, anyone can be a mediator. Legal training is not required. Take a look on the Internet at all those people who call themselves family mediators and have mediation businesses. Consider, too, family lawyers in current practice, who are fully regulated and insured. And ask: when you’re in need of help, caught up in a complex legal case with various possible outcomes, why would someone with no clue about what’s really involved be your first port of call? Would someone without a medical license be your first choice as a doctor?
And secondly, mediation is practised by lawyers too, but for all mediators, mediation is scrupulously non-partisan. The issue of conflict is real. So to avoid an accusation of conflict, mediators will be civil, they will hold the fort and keep the peace, leaving the couples to make their own decisions. Mediators are not there to ensure there really has been full, frank and honest disclosure even when it’s blindingly obvious to someone giving an overview after the event. Mediators don’t scrupulously assess the situation like a lawyer, they aren’t partisan, they don’t fill in gaps, (assuming they are aware of them) and above all, mediators will take care to tell you they don’t give LEGAL ADVICE. What you have in a mediation is, like it or not, is the blind leading the blind.
Inevitably therefore, no matter how good at the process a mediator may be, many clients tell me they left mediation frustrated, unhappy, and on top of that, having to start all over again with the only alternative, an adversarial process neither party really wants. They feel isolated, insecure, unsure of what they’re doing whilst the mediator presides over the wreckage of a marriage, without ensuring that all the sharp edges below the surface have indeed been found and smoothed over.
Couples generally only realise what they have missed when they see their own lawyers and find out what could have been done if only the mediator had been proactive. But worse many couples in a non-lawyer mediation don’t trouble to cross check what’s happened with their own lawyer and may not even get a court order to legalise the process they have been through. This is hardly ideal.
Personally I prefer arbitration to the current system of mediation. It guarantees an outcome, something which mediation does not, and it’s fast. Some lawyers in Canada wax lyrical about what they call ‘Med/Arb’ -mediation leading to arbitration if the first approach fails. Great if you can afford it and have time to devote.
But arbitration also doesn’t deal with couples who ideally want to avoid any kind of litigation but don’t trust themselves to mediate in the current system. So what can they do and where can they go?
There is now potentially a third way, one which Maclean and Ekelaar set out in their book. When you read their proposal you find yourself wondering why on earth no one has thought of this before.
What if one family lawyer could advise the couple jointly? Just imagine. Instead of two lawyers, the beleaguered couple decides to use just one lawyer for their divorce advice, financial settlement, and children issues too.
Let’s imagine such a model. The couple would share the fees and there would be no need to conflict out the other side’s lawyer. All those worries about who has the best lawyer go out of the window. Secondly, all possible approaches, permutations and potential outcomes would be set out for them both to consider together, allowing a full and frank discussion to ensue. And there are many possibilities which experienced family lawyers know all about.
A solicitor would be able to even give an informed opinion about the possible ultimate outcome. So could Counsel, who might also be brought in to advise the couple, directly or indirectly in the same way.
In a forthright meeting or series of meetings, the lawyer, whether solicitor and/or Counsel in complex cases, would advise them both what’s needed to ensure that all the information really is on the table. No missing documents, no under valuations of shareholdings, no missed bank statements or pension valuations: it would all be there, all obtained, all done upfront and then all would be open to neutral discussion. Ditto in children cases or even sorting out the basis for the divorce itself, and when to move to Decree Absolute. If a religious divorce is also required how much easier it might be with both parties in the same room.
The lawyer would effectively present the couple together with a whole range of options as to how they could settle. He or she would proactively help them to come up with a plan that in some cases might even be unorthodox, one that would have been discounted in the usual process, but one which the couple both actually want – something, in other words, that works for them. A draft court order would then be drawn up. And then, when it’s all done, ready to be signed off, they could potentially go get it checked over by independent lawyers to ensure it’s what they both still want. It’s like an enhanced form of mediation, but so much better.
But would it work? Would the lawyer be biased one way or t’other? I don’t think so. Why should an experienced lawyer be anything other than impartial? Why wouldn’t the lawyer act more like a Judge, giving an overview rather than being partisan? Seriously, aren’t lawyers really quite capable of putting aside an adversarial approach? I’ve seen it in mediation and as an arbitrator.
Mavin Maclean and John Ekelaar, sitting there respectively at the top of their rarefied academic towers, have clearly seen the common sense in a fresh approach, enabling joint advice to clients with Client and lawyer protections afforded by amendments to the Law Society Family Law Protocol. It has the potential to be so much more effective than the current system. We’re seeing couples jointly already in mediation – rid ourselves of the adversarial model and the potential for conflict and this is a very natural holistic and much cheaper approach.
Would clients buy it? Of course they will. I assure you that lawyers do get fed up of hearing “can’t you act for both of us?” we knowing full right now they can’t. And we tire of having to turn away a couple who don’t just want neutral, sterile territory, but do want to settle with the benefit of professional advice.
As the authors note:
“If we accept that the legal framework is of value in protecting the vulnerable and promoting fair agreements in family matters in times of stress, it follows that parties need to know what the law requires and how they can agree enforceable decisions in the shadow of the law.”
Yes, there will still be clients who can’t commit at the outset or even at all and prefer their own independent advice, and they are entitled to say so and take that course. But I think it could still make all the difference for many couples, as long as their lawyer is willing, able, and has the appropriate training. It might even qualify for legal aid.
I do hope that our current Lord Chancellor, Michael Gove, decides to arrange lunch with Mavis Maclean and John Ekelaar as soon as he can. They will certainly have plenty to talk about.
Photo by Incase via Flickr under a Creative Commons licence
April 4, 2016