Court out

For family lawyers, the confluence last Wednesday of the spending review announcement and the Supreme Court judgment in the Radmacher case produced an information overload. Maybe because the cuts had been talked up for so long, the attraction of some black-letter law on prenups seemed to win the hearts and minds of most lawyers; at least among those I follow on Twitter and LinkedIn.

Ever hopeful that potential clients would be as interested in prenups as some in the media would have us believe, many of us worked our socks off getting our blogs up and press releases out to feed an apparently insatiable appetite for this potentially advice-altering decision.

The chancellor announced a 26 per cent cut to the Ministry of Justice's budget. With allusions to the reformation of legal aid and the closure of many courts, this was clearly not seen by many as news which clients might want some perspective on or which created a real marketing opportunity. It was relatively overlooked by practice websites and, instead, comment seems to have been restricted to professional forums where the cuts have been a unifying rallying call by those who want to blame events outside of their control for the decline in the family law market rather than face up to some home truths.

But tucked away in an MoJ statement released later was this: 'We will reduce spending on courts and legal aid by developing and increasing awareness of access to alternative ways to resolve disputes.' So this isn't just a slash and burn policy; it may have an ethical backbone. Which is just as well for families.

On the sidelines

Mediation has been around for thousands of years. Family mediation has been recognised in England and Wales since the 1980s and the first lawyers here to train in collaborative practice did so in the early 2000s. Yet ADR still plays second fiddle to the court for most clients in most types of cases despite ADR's great outcome record.

Seemingly, one reason for this is that most lawyers believe that only a small percentage of their clients either want to use ADR or involve scenarios that are ADR appropriate. Yet those very same practitioners will talk about their success in settling 95 per cent of their cases. Often these settlements are reached, though,at the doors of the court when emotions are running high, the clients are running scared of the possibilities and the lawyers start to worry about what might happen if the client takes their advice but then loses.

Too much court time is taken up with a process that ultimately is abandoned in 95 per cent of cases, sometimes as late as the day of the final hearing itself which leaves the court with no opportunity to fill the void, and which causes delay for others. If we are so good at settling cases with the courts' help, we should be better at settling without any court intervention.

It seems that too few clients are being given guided support towards ADR alternatives when looking for non-adversarial solutions, so court is where they tend to end up. That puts an unnecessary emotional strain on them, their families and friends. It takes up court time that could be more appropriately used and adds an avoidable cost to the individuals and the state in the form of fees, the court budget, legal aid, Cafcass and even the NHS.

Litigating has become the default where it should be the alternative and so, if we in the legal profession haven't been able to effect a new ADR paradigm, it's right that the state should help us to. The more people who use ADR, the fewer will need the courts. If fewer use the courts, there will be more judicial time available for those cases which involve vulnerable adults and children.

Getting stuck in

Current family practice is failing families. If it is financial constraint rather than an ethical awareness which is going to force lawyers to rethink how we find out what our clients really want, what is most appropriate for them and how we are going to deliver, then we need to get stuck in.

My guess is that 95 per cent of private children and financial cases could be better handled in a way which completely avoids the court system through some form of appropriate dispute resolution '“ whether as pure mediation or collaboration, or some ADR hybrid. By recognising that our clients don't want to go to court, and by encouraging and supporting them to sort out their differences in a way which is more appropriate, we will be able to put to bed the stereotypical view held by many family lawyers '“ that we only make things worse.