Partner Tasha Bevan-Stewart, in our Family Law team, discusses out of court options in Family Law
The recently concluded series three of BBC drama ‘The Split’ dealt with the theme of the elusive ‘Good Divorce.' The matriarchal family lawyer character, Ruth Defoe, asks in her Podcast: ‘Is there such a thing?’ Our clients often grapple with this question.
To my mind, a good divorce should focus on client-led outcomes, and managing conflict in a process that is flexible enough to adjust to their needs. This means avoiding the rigid process of litigation. The courts are more backlogged than ever following the Covid pandemic, and as family lawyers we must actively manage our cases to guide clients in the right direction.
Family lawyers spend a lot of time helping their clients avoid court. A central part of our job is to settle cases constructively, which involves carefully advising as to the cost vs benefit of pursuing their case. We effectively 'negotiate in the shadow of the court.'
A conference I attended in London recently on High Net Worth divorce and non-court alternatives got me thinking on this topic. In the last few years, a plethora of specialist methods to help clients resolve disputes privately has sprung up in Family Law, driven by the needs of clients who quite reasonably do not wish to tolerate court delays. Covid has motivated us to seek ever more creative ways of helping clients to settle their disputes privately.
Collaborative practice allows divorcing couples to avoid court, reaching a private agreement through discussions with their lawyers. Legal options for settlement are explored, reality tested and finally recorded in a binding order submitted to a judge to approve virtually.
Out of court arbitration offers clients privacy, flexibility and an adjudicated outcome far quicker than the court system can deliver. Mediation can now include your lawyer, if needed, and there are other options to obtain an early neutral evaluation of your case or convene a private lawyer-assisted negotiating session.
This week I’ll attend Resolution's National Conference, where I have been shortlisted for a Resolution Family Law Award for ‘Working in Collaboration.’ I am looking forward to seeing many of our colleagues in person where non court settlement options will be discussed widely.
Resolution is the association of family lawyers for England and Wales. Its 6,500 members sign up to a code promoting constructive legal practice. About a third of our jurisdiction's family lawyers sign up to the Resolution code.
Over the past four years, I have co-chaired Resolution's Collaborative Practice Working Group. In my role I have talked to Family Law professionals up and down the country about practising Family Law in a collaborative way.
I have written and presented seminars where I talk about the 'magic' that happens in the collaborative process when professionals and clients are focused on delivering the best outcome for the family. A commitment to avoid court underpins this process. Each successful experience I have had with this method, working with many different professionals, has confirmed its effectiveness.
Having seen the full range of Family Law cases over 15 years in practice, I observe that client satisfaction levels following a collaborative process tend to be off the charts compared with a court imposed outcome. There almost is no comparison. Courts are unpredictable, overloaded and costly. By contrast, an out of court process offers a more dignified solution.
So my message is simple: if you're a Family Law client, talk to your lawyer about out of court settlement. If you're a practitioner, consider your options when starting a case, and if you can guide your client into a collaborative process, this is likely to give them a much better springboard into their future.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
