Family lawyers' new band

A fundamental shift is taking place in family law, yet many lawyers are not changing the way they work in anticipation. New research reveals that half (49 per cent) of family professionals believe lawyers soon won't be the first port of call for divorcing couples, with the vast majority (87 per cent) seeing this change taking place within the next five years.

The research, 'Modern Families: The Changing Face of Divorce', has been conducted by Mills & Reeve among 100 professionals working in the family arena, including leading family lawyers, financial advisers, counsellors and therapists. It goes on to reveal that a large majority (80 per cent) see very few law firms actively working with other specialists, despite almost all (95 per cent) believing that there are great advantages to doing so.

Should the profession be concerned?

There is certainly plenty of evidence that change is happening apace. April 2015 marked the first anniversary of the family justice reforms, heralded as the start of a cultural revolution.

Among the many provisions to come into force were the single family court, compulsory mediation information sessions for all divorcing couples (unless exemptions apply), new child arrangement orders to replace the old 'residence' and 'contact' orders, and the 26-week deadline for public law care cases.

To cap it all off, there have also been radical legal aid cuts which have recently been lambasted by a series of parliamentary committees, for damaging access to justice.

These changes are inevitably having an impact on family practices, and the industry statistics appear to support the research, showing a trend that the impetus is moving away from family lawyers.

The quarterly statistics for January to March 2015 show that the number of cases that started in the Family Court dropped 4 per cent to 60,902 compared to the equivalent quarter of 2014. Nearly half of these new cases were divorce cases. The number of private law children cases initiated with lawyers showed an even sharper drop to 10,569, down 12 per cent from 2014.

If not lawyers, then who?

Perhaps unsurprisingly, given the emphasis on mediation over the last few years, almost half (49 per cent) of the experts who have taken part in the research believe mediators are most likely to become the first point of contact for divorcing couples. Family consultants come next (11 per cent) followed by therapists (nice per cent), financial advisors (seven per cent) and then, interestingly, the internet at just two per cent.

Adding to the growing focus on mediation, it's also worth noting that it is one of the few areas for which public funding is still available. In response, practitioners are queuing up to train as mediators or to refresh their mediation skills. It is not an easy option though, and it can be extremely uncomfortable for experienced family lawyers to try to work in a very different way, and (often) in high conflict face to face situations unprotected by counsel, correspondence, or geographic distance.

Theory or reality?

Does our research bear any relation to what is actually going on up and down the country today? When asked about whether they think more people are considering mediation since Mediation Information and Assessment Meetings (MIAMs) were introduced, 69 per cent of family professionals said that they do. And yet, research indicates that the number of people accessing mediation services in England and Wales has been consistently lower than hoped.

Since the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), numbers using mediation have fallen dramatically. For example, mediation starts in five Relate Centres had decreased by 18 per cent when the period April-September 2012 was compared with the same period in 2013. Legal aid statistics published in June 2014 show that between 2006 and 2013, mediation starts were between 13,000 and 15,000 each year.

However a corner may be being turned. Over the last year, we have started to see an increase in the number of MIAMs which, in the last quarter (January - March 2015) were up 19 per cent on 2013's figures. The number of mediation starts, like assessments, are also now increasing, with starts in the last quarter up by 33 per cent compared to the same period in the previous year.

The volume of mediation starts focusing exclusively on children issues have always been and continue to be consistently greater (now topping 62%) than either those dealing with pure finance or 'all issues' mediations.

But it's not all plain sailing for mediators

There is also growing evidence that those cases that are being mediated now are more complex than ever before. This illustrates the significant shift in the mediator's client base as a result of the changed legal aid landscape and the increase in privately funded clients opting to mediate.

The growth in complexity represents a considerable challenge for mediators who will have to adapt their skills and approach. In particular, those who adopt a 'purist' approach to mediation (where only non-challenging cases are deemed suitable) need to take heed from other jurisdictions where complex cases and those with high conflict can and do regularly benefit from mediation alone, or by combining mediation with other therapeutic interventions.

Joining the dots

If the overwhelming majority of family professionals think that family lawyers will no longer be the first port of call, and that mediators are the most natural fit, what do they think about lawyers working more closely with other professionals such as mediators?

Ninety five per cent agree that there are advantages for separating couples if lawyers work more closely with other specialists; however almost as many (80 per cent) feel that very few law firms are actively working collaboratively with professionals including mediators, family therapists and financial advisers. Furthermore 65 per cent think that there is active resistance from some lawyers to this collaborative working.

The research shows that there are very good reasons why collaborative working is beneficial to clients:

• Making the divorce process less stressful for couples (91 per cent);

• Reducing the likelihood of litigation (83 per cent);

• Increasing client satisfaction at the end of the divorce process (70 per cent); and

• Speeding up the process (62 per cent)

Working differently takes all professionals outside their comfort zone, requires a considerable investment of time and energy, a willingness to step off the hamster wheel, look afresh at the dispute resolution world, and to take a long term view.

Complex cases need many professionals working together; mediators, lawyers, financial advisers, accountants, therapists and others. Where resources are stretched, targeted legal advice supporting the mediation process can be hugely beneficial and profitable/cost-effective for all in the long run.

Swimming against the current

Despite all the change, it still seems to suit some family lawyers to believe that it is the world of other lawyers in other law firms that is changing and that they won't be affected. Our research confirms this attitude with over 70 per cent stating that family lawyers are simply not adapting fast enough to the new environment.

Being a good legal practitioner, alone, is no longer good enough. We are seeing a move away from a traditional, regulated profession focused on bespoke client care throughout the divorce process to itemised or commoditised services offered directly to the public by a much wider range of providers with varying degrees of regulation and accountability.

We should welcome a cultural shift that sees divorce as more than a legal dispute and rather as a series of complex changes affecting the wider family.

The most important factor to bringing about this cultural shift is the development of more effective partnerships between family lawyers, mediators, family therapists, counsellors and financial advisers - indeed anyone a family needs to support them through their separation and beyond.

Alison Bull is a partner at Mills & Reeve

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