Will this idea help save family lawyers from extinction?

Since time immemorial, couples going through the breakdown of their marriages have been actively discouraged by the legal profession (or at least the profession’s governing body) to look for help from a single solicitor helping each of them. The thinking behind this is that acting for both would be impossible without that advice potentially being in conflict. In very simple terms, this might be if a wife, for example, said she wanted to stay in the family home, while the husband said he wanted to sell it. What then for the hapless solicitors involved? What do they advise the wife? “You should be able to stay” or “You ought to leave”? So to make sure these sorts of situations never arise, solicitors do not act for both. But could they?

The relevant part of the regulation which relates to this has a section which essentially says that a solicitor can act for both parties if the parties have a substantially common interest in relation to that matter and they confirm in writing that they want one solicitor to act. What could be more of a common interest to a couple who are separating, than the interest of their family? It is core to achieving a fair outcome.

What sort of couples are likely to want a single lawyer instead of two? They are going to be couples who have probably come to terms with the end of their relationships. Couples where there are no destabilising power imbalances and who already have a good ability to communicate. And couples who have similar views about what a fair outcome for each other and their children might look like. In short, many, many couples, including the huge number who currently avoid lawyers because they fear, with some justification, that the law will cause rifts between them, and who also avoid mediation because, as simple and effective as it is, mediation is a process which they simply don’t feel they need.

With Alternative Business Structures on the horizon, giving organisations other than lawyers a chance to deliver legal services – organisations which won’t be governed by the same rules which govern solicitors’ conduct. And with the ever-increasing opportunities for software-savvy tech firms to build systems that reduce the need for a lawyer’s input, this could be a real opportunity for those family solicitors who are already committed to dispute resolution by the most appropriate family-focused way to halt the flow of work to others and show that we really want to walk the walk not just talk the talk of change.

With special thanks to Angela Lake-Carroll, who shared this, her idea, with me.

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3 comments

  1. Anon

    Why should this idea not in fact accelerate the demise of the family lawyer?
    You say new suppliers, or ABSs will enter the market place and offer innovative new services.
    It seems to me that this is needed.
    What I have in mind is a whole new profession.
    Why can an interested and motivated individual not study for a diploma, or degree if you’re feeling posh, in Family Dispute Resolution.
    Rather than spending 3 years studying jurisdiction, tort and constitiutional law, you could do one year on the limited areas of family law that most cases require, with two years on excellent therapeutic principles, dispute resolution processes and family social science.
    The result? A fully trained, broad skilled, hybrid professional dedicated to serving families going through separation.
    At the moment it is as though the ADR lawyers are holding up ADR as a great noble movement while at the same time trying to hold on to their own former roles and privileges. The debate is not yet fully developed. What would a lawyer free collaborative team look like for example? At what stage would it be necessary to go to a lawyer to draft and file an order? Could a barrister with direct access not do that?
    Part of me suspects this “We can advise both” stance is an attempt to keep abreast of that shift – hence the title about saving family lawyers from extinction. It is not about saving lawyers. It is about serving families.
    This debate should not be about backwards looking preservation of traditional roles and long established professions, but rather a look forward at how families are served by the therapeutic, social and, to a degree, legal professions.
    If we are going to be able to fully explore this area then we need to let go of the existing order and debating the preservation of the family law profession. For that reason it may well be that the family law institutions will prove to be incapable of leading the debate fully for fear of incurring the wrath of it’s members -which they would, without a doubt. And for this reason it may well be that the full debate needs to be had anonymously.

    • Stephen G Anderson

      Much of what Anon says is perfectly plausible but I’d go further. The court system and the training of lawyers needs a root and branch overhaul rather than the patchwork of ADR, MIAMs or direct access for barristers. And this is something I was saying in my presentation at the ADR conference last week, as well as to anyone who gave me half a chance to ear-bash them privately. It was also at the heart of my question about parliamentary behaviour to Jonathan Djanogly, the Justice Minister, when he addressed the conference; a question which I’m proud to say raised the only cheer of the session.

      As the blog author, though, I’m not just looking at the future, but at the present. And I’m not looking at why clients deserve client-focused services (there is no debate about that as far as I’m concerned) but how as lawyers we need to become client-focused in order to hang to any role we already have. This is a two-way street for lawyers, and being a lawyer is part of what I am, so I want to survive and flourish . Of course a new dispute resolution profession could spring up – that’s what I was saying, Of course barristers could draft an order, but their problems as a profession in family law are even more grim than those of solicitors. And of course the “advising both” bit is an attempt to keep abreast of the shift. What could possibly be wrong with that? A collab team without a lawyer though? Mmm, not sure if Anon appreciates what lawyers do, in that case. Collab is a legal agreement in which lawyers, advise & negotiate, usually within the framework of what a court will ultimately appprove, so their role is pretty central no matter how much of the foot work is carried out by financial planners or family consultants..

      Anyway, ADR is more than collab and it is more likely to focus on mediation related processes in the future in my opinion. As a lawyer- mediator my role in family dispute resolution is likely to significantly increase in the future, whatever happens to family law, or family lawyers. I am already an expert dispute resolver and it will take longer than I have left as a working person for other professionals to eclipse what I can offer clients.

      The only comment by Anon that I thought unnecessary was the slightly pejorative suggestion that “ADR lawyers are holding up ADR as a great noble movement while at the same time trying to hold on to their own former roles and privileges”. ADR lawyers, from Henry Brown, John Haynes and the pioneering mediators through to Stu Webb & the collab movement, should be immensely proud that they have consistently sought to swim against the tide of the dogma of adversarial persuit. They would be mad not to try to hang on to their roles. Privileges? I don’t hear many if any asking for privileges, but see many of them trying to tear down the statutes (sic).

      I don’t feel the debate should be anon. Let’s get it out in the open.

  2. Rosie MacGregor

    1. I agree entirely with Anon that those practising Family Law could well benefit from a more specialised law degree which incorporated options on mediation/child welfare etc and dispensed with more arcane areas of the law.
    2. There will always be clients for whom a consensual approach to divorce and separation is simply not appropriate, either because of the levels of anger/hatred/DV or because of an excessive power imbalance that even the most skilled mediator cannot redress.
    3. I have mediated many cases without a lawyer in sight (their choice) but it only works if both have the confidence of their convictions. Many others need their hands held.
    Rosie MacGregor
    Compass Mediation

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