Power to the people
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Why are family lawyers against settlement conferences, wonders Jean-Yves Gilg
There are some powerful arguments against settlement conferences. Moving away from court-based procedures is the current zeitgeist in dispute resolution, but the risk is that we relinquish important safeguards.
This could be a particular concern in cases involving vulnerable parties such as children, especially in public law cases where families very often come from less privileged backgrounds.
Yet, the near unanimous vote at the Family Justice Council debate last night against the settlement conference pilot scheme in care proceedings is difficult to fathom. It is possible that family practitioners pre-emptively voted down the scheme itself rather than the pilot.
Either way, it highlights the deep suspicion surrounding the proposal. At a time of budget cuts and court fee rises, every new measure comes across as a cost saving move, regardless of its broader intentions.
The settlement conference concept comes with baggage, too. It’s an alternative to a process where families are taken apart, but all it proposes is to follow a different route in the hope it will make the outcome more acceptable.
There is also something constitutionally uncomfortable about judges rubbing shoulders with local authority managers and, together, coming to a suitable solution. Then again, even in the course of ordinary care proceedings judges are able to make suggestions and point parties in the direction of a just and fair solution. Would it be so different if they were to make these suggestions not from the bench but from a seat on the other side of a table?
The trend towards a softening of the dispute resolution process has the support of most legal professionals involved in court proceedings. A further argument that settlement conferences don’t come with the same legitimacy as court rulings has been heard before, as has the claim that litigants more readily accept a decision made by a judge as a figure of authority. People don’t want to be given power, the argument goes, they want a predictable process and clear decisions. If this were correct, mediation and other alternative dispute resolution processes would simply be ruled out.
Perhaps the most acute point was made not by a lawyer but by a doctor, child psychiatrist Mike Shaw, who said the settlement conference approach sounded like a doctor agreeing treatment with a patient without being first satisfied that the treatment was medically appropriate. Which takes us to the most troubling aspect about a vote against the pilot scheme. Shaw was one of only three delegates who has actually taken part in a settlement conference. Nobody else in that 95 per cent majority or so who voted against has.
Judge Margaret de Haas QC, who is piloting the scheme in Liverpool, and deputy chair of the Family Justice Board Sir David Norgrove, were at pains to explain that this was only a pilot. Already, they said, the project team was reviewing the process. They certainly need to. Saying, as de Haas did, that the success rate was 70 per cent and that 200 judicial hours have been saved doesn’t mean much without further detail about how ‘success’ is measured.
More research and clear metrics are undoubtedly required before pressing ahead with settlement conferences. And if the scheme is shown not to be appropriate, then it shouldn’t proceed. But, let’s not write-off settlement conferences until the pilot has been completed.
Jean-Yves Gilg is editor-in-chief of Solicitors Journal