Uncertainty is a part of the divorce. It is time to make positive changes. How to help separated couples get through separation without getting lost. When I created a new method for couples to handle their separation last autumn, I didn’t realize that Coronavirus would make it almost an absolute necessity for separated couples to have an alternative than going to court or setting foot in the same place together to resolve their family issues.
When I was asked to be the firm’s Partner in Innovation and Change, the journey began to find a new way to separate. This is not to brag but because it was a key part in the development of ‘uncouple. In that role, I was determined to create new ways to deliver legal services to clients. This aspiration was triggered by the fact that we had made London an agile city two years ago, and that remote working and better-utilizing technology had become a key part of our work culture. It occurred to me that we should also look at our backyard to find ways to make it easier for couples going through separation or family law south surrey. I am a family lawyer first and foremost.
Another important trigger was the feedback I received from my clients. Many clients were saying they didn’t want to go to Court. They wanted a fair outcome but didn’t know what it was. And they didn’t understand the process or options available to them to reach a fair deal. No matter their financial situation, they wanted a cost-effective solution. For many, it was difficult to meet their ex in Court.
Mediation, and other options
Given the changes in the family law system over the last 20 years, it is understandable that clients would say these things. I’m just old enough to be involved in cases before White 2000, the seminal case that changed asset division to eliminate discrimination between breadwinners and homemakers and established the need for ‘fairness. The law has been clarified in many ways over the past 20 years, but it is still a mystery to divorcing spouses and they are still unable to fully understand what fair means.
From a practical perspective, divorce was almost always based on litigation until very recently. Despite the existence of a great Resolution program in 1986, not enough cases were willing to mediate. My partner and co-creator, Diana Parker, was one of the original members. Even though the courts have become less accessible, there has been an increase in the number of dispute resolution options, such as mediation, neutral evaluations, arbitration, and the Collaborative model.
Court access diminishes
The number of family cases with self-represented family members has increased dramatically since the public funding for family disputes was stopped. Resolution’s Manifesto for Family Justice reveals that 4/5 family cases have one or both of the parties representing themselves. This sad fact, along with the fact that 152 Court buildings were sold between 2010 and 2017, has caused long delays for couples seeking assistance from the court in resolving their family issues. On 26 March 2020, the Ministry of Justice reported that it took on average 12 months to obtain a divorce and private law child cases took on average six months to reach a final hearing. This was true before the Coronavirus. However, the Court system has been weakened by adjourned hearings and fewer Court staff members (who also struggle to learn how to manage remote or telephone hearings) since lockdown.
According to one barrister’s clerk, hearings have dropped by 30% since the Coronavirus epidemic. Some of the hearings are taking place on paper, with no possibility for either party to make any representations by phone or via VC.
The Government’s policy regarding family disputes changed before Coronavirus. Dispute resolution was a central plank. This is based on the principle that “the emphasis throughout should be on making it possible for people to resolve their conflicts outside of court whenever they can”. Further reforms were also planned for the period before the pandemic. These included shorter hearings and more telephone/VC. The President of the Family Division, Mr. Justice McFarlane launched an investigation into the family court system in response to the extraordinary increase in child cases. According to him, such cases can be better handled by persuading parents not to go to court. In his keynote speech at Resolution last year, titled ‘Living with interesting times’, he called on family lawyers to focus more on a “solutions-based process” that maximizes the “opportunity to settle” and allows cases to be managed more efficiently in terms of cost, duration, safeguarding, and costs.
Developing a solution
Couples need to have better options and a new way to deal with their family problems. I began to consider why the current DR options were not always as effective as they could and which elements of those options and the Court system were most effective.
Then it began to make sense.
1. The Court system works because it provides a clear path or process for divorcing and separating couples. If they are unable to reach an agreement, the court makes decisions. It is not flexible. Delays can be a problem, but the Court system creates more conflict between couples. It requires that parties adopt positions in litigation that causes polarization.
2. While the dispute resolution options allow couples to negotiate, there is no way to connect them or the Court system. If one option fails, there’s no way to move on. It can be difficult to determine what outcome is fair due to the non-directional nature of some options. But, mainly, because they all require positional offerings (leading us to the polarisation discussed above). This can make it even more difficult if each party is unable to articulate and create their proposals.
The new model needed to be adaptable to different situations, and cost- and time-effective. We used the best of all available options and combined them into one process. Then we removed any parts that caused conflict and replaced them with new stages to help narrow the differences between couples until they reached a solution.
Reducing the issues
It became apparent that the couple should work with independent, impartial lawyers without any vested interests. This service allows the couple to be guided through the process, including financial and information sharing. The couple can then call on other members of the team to help them determine the options and outcomes based on their priorities. If the couple cannot reach a solution, they can work with each other to narrow down the issues and find a resolution.
If there is a dispute in the information sharing, such as one party asking for a house to be appraised by an independent expert and the other objecting, the couple can quickly resolve the issue. Then they can move on to figuring out the finances. Uncouple allows an internal arbitrator, or an external one, to resolve financial issues in the same manner as a judge at court. The difference is that the issue can be resolved on paper, in a virtual hearing, or face-to-face in days instead of waiting for months to go before a judge.
A couple can only begin to negotiate once all financial information has been fully exchanged. Couples can find it more difficult to negotiate, especially if their financial knowledge or experience is not equal. Our model incorporates an independent neutral identification of settlement outcomes that focuses on what is important to each party. It also helps to minimize conflict and avoid polarization that can arise from parties exchanging settlement offers.
The facilitator/mediator’s role continues to be focused entirely on managing the process and the negotiations, whilst input is given by other members of the team to ensure the process is increasingly focused on a specific outcome. This team approach allows the couple and firm to align their positions to achieve a fair outcome. Each team member acts independently, and each role is clearly defined. The facilitator/mediator helps to keep the process moving towards a solution. This is very different from teams of lawyers accidentally pulling in opposing directions.
If the parties are unable to reach an agreement, they have two options: they can either ask an independent arbitrator to make a binding and final decision or they can go back to court.
The service can be provided in-house and under one roof, though it is virtual at the moment. Face-to-face meetings will resume when we are out of the current circumstance. This allows it to be more easily managed and costs less. It also reduces the administrative time required to facilitate the flow and exchange of information. Parties have the right to seek independent legal advice at any stage. This is not an exclusive club, but it is intended to help parties find the most cost-effective and efficient route to resolution.
This model also gives couples more options. Contrary to the court system where a couple must go through each stage (the First Appointment and the Financial Dispute Resolution, along with any Interim Directions Hearing), couples can choose to skip certain stages. It’s very flexible. It is flexible. For example, if a couple has a private issue about maintenance variation, they might prefer to have a binding agreement made than to enter into negotiations. Every couple has different needs, so the model should be used accordingly.
This is also an entirely private process and it is done at the couple’s pace. Unlike the court system, which sets hearing dates regardless of whether solicitors, clients, or barristers are available and makes it increasingly difficult to move, which is imposing fixed hearing dates. Some cases may not be suitable for this model, so both sides must embrace it. If the alternatives are long court delays, inconsistency in judicial proceedings, hearing dates at inconvenient times without regard to the availability of legal teams, increased costs and conflict due to the positional nature of litigation, and the new system, is it worth going into a court system that is crumbling under the pressure? Particularly because the court system is adversarial, which can inadvertently put parties in opposing positions with two sets of attorneys pulling them apart. Uncouple works with one team and a couple who share a common interest in reaching a mutually beneficial resolution.
These are difficult times for couples going through a separation. While some will require a court case, others may need guidance and direction on how to best help their family. Working with a group of lawyers who share the same goal of finding a solution gives them greater chances of getting the best possible outcome.