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Stephen G Anderson
“Domestic abuse is something that happens to other firms’ clients not mine.” “Domestic abuse is not something I really want to hear about.” “Domestic abuse rarely happens to men or boys.” “Honour abuse: what are you on about? This is not Detroit you know!” Sound familiar?
The high profile case of Raoul Moat in 2010, almost went unnoticed as a domestic abuse incident, yet last year the government started dismantling much of the system used to help those facing domestic abuse. In 2006, the police unwittingly sent Banaz Mahmod, a young Iraqi Kurdish woman from south London, back into the arms of her family who then murdered her and buried her in a suitcase. She had been spotted kissing her boyfriend outside a tube station. A chilling story, and a death which could have been avoided had the police understood the concept of honour abuse.
Law professionals – lawyers, mediators, financial planners, family consultants – are in the front line. We need to know how to spot abuse if we are going to protect our clients and ourselves. Yet too often, our response to any invitation, even if it’s free, to train in domestic abuse awareness is along the lines of those in my opening paragraph. Perhaps telling of the legal profession’s attitude is that I am the first family lawyer or mediator to sit on my county’s domestic abuse forum for about 10 years.
My interest in learning more stems from the fact that I’m always on the look-out to provide my clients with better systems to help them and their families. There will always be a need in some cases of domestic or honour abuse for a “route one” approach to the courts for an injunction, and where I assess this to be the case, I refer to a litigation colleague. My interest is to be able to screen with sufficient certainty to allow me to offer my clients a safe alternative approach. Currently, it’s ironic that only those perpetrators convicted of a criminal offence, or injuncted by a court, are offered places on rehabilitation programmes. Those families which want to adopt a more supportive approach, say by using mediation (caucused safely in separate rooms) or collaboration, cannot easily gain access to these programmes. So an opportunity to break the perpetrator-victim cycle earlier is being lost.
This blog can’t change anything. But I do hope that any professional who reads it may decide to gain a little more knowledge about domestic and honour abuse, and agree with me that it shouldn’t be left to the legal aid lawyers down the road.
The only certainty for family lawyers is that they face a very uncertain future. With the government seemingly engineering a larger role for family mediators in the family justice system, and with family mediators already engineering larger roles for themselves while the government formulates its policy, what does this all mean for those who aren’t mediators?
Lawyers mustn’t lose sight of their essential role in most mediations, They help their clients choose the right mediator, and can prepare them for the process by helping them identify their goals and needs. And they provide the essential service of providing a legal assessment against which the mediation proposals can be measured. From this lawyer-mediator’s viewpoint, good mediation support lawyers are like hens teeth.
My prediction is that with family consultants and financial planners also undertaking more of the work which lawyers used to think of as their own, these changes are bound to lead to a huge reduction in the volume of work which is currently sustaining so many – even those who are involved in public law work. Numbers could decline by 70%. Make sure you’re one of those who has a future by embracing the changes, not turning your back on them.
News in the Daily Telegraph that one of Britain’s highest-profile divorce lawyers has charged her clients for more than the amount of time she recorded on their cases ( http://tinyurl.com/3muqzbp ) may be a greater surprise to the general public than it will be to those of us working in the legal professions. The practice of “marking-up” is a long-established one. Some lawyers not only charge for the time they have remembered to record, but also include extra charges to cover time they forgot to record, for working anti-social hours and for any highly pressurised complex work. The question to ask is not simply why clients pay these sums, but what value is there in going to a “top divorce lawyer”.
As a member of the relatively small world of family law professionals who not only have the skills necessary to help people deal with their divorces in a low-key, dignified and consensual way but actually use them, I find it slightly ironic that our services are the ones which celebrities and the wealthy tend not to seek out. Our interdisciplinary approach provides for a greater likelihood that a better outcome will be achieved for the family members involved, as well as for decency, privacy and significantly lower legal costs.
Ask any family lawyer or judge which cases are the most challenging and the answer will typically be those where there is simply not enough money available to even cover the future needs of the couple and their children, let alone what else they might want. It is not those cases where there is more than enough money to go round, but the couple simply cannot agree who gets what. Yet the former are the cases often being run by the lowest paid, least experienced lawyers, who are frequently working in practices where there is little money available for resources and training – perhaps a typical legal aid practice.
These “low value” cases are also a staple of family mediators, many of whom work on a fixed-fee not on a mark-up basis. Yet mediation is without a shadow of a doubt requires a far greater skill-set than the practice of taking a client through the court process, which any family lawyer with a little experience can do. And the rewards? Well, if you are lawyer whose main tools include the media and the courts, the rewards are great: you may be ennobled, so allowing you to sit in the House of Lords; you will achieve great wealth; and probably widespread acclaim in the media as a real expert. The rewards for most family mediators are not in titles, money and acclaim. They are mostly a satisfaction in knowing that we help to achieve outcomes which are not only valued by the couple involved, but by their children and families too. That is what is known as real value.
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.
What I do know is that most of them come through our doors full of anxiety about talking to strangers about their most personal problems; worried to the back teeth about how much they are going to have to spend on getting things sorted; and in a state of near meltdown over how they are going to move from struggling to support one household to supporting two. Their heads are simply full of anxieties, about co-parenting, careers, money, why their relationship failed and much, much more. What most of them don’t want is to go to court, and that’s very clear.
Traditionally, though, what they’re offered is the rather unsophisticated and usually punishingly expensive one-size-fits-all approach which relies upon solicitors’ correspondence to narrow the issues, but which often involves a large degree of court intervention when an agreement isn’t brokered quickly enough. More recently, if they are very lucky, they might find themselves instructing a solicitor who is collaboratively trained, or a mediator, or at least a lawyer who understands mediation, in which case the chances of keeping the case out of court will be better, the outcomes better and the costs lower.
But there are still a large number of clients for whom even mediation or collaboration are not the approach they want, or feel they even need. What these couples want is a simple divorce and a financial settlement which they have worked through together and which they feel is fair. They want a single professional to help them together and to draft any paperwork. Yet most lawyers won’t go near such an approach and this means that there are many, many people who aren’t getting the legal service they really want.
Nearly every client I’ve seen since the start of the summer has clearly wanted a less intensive legal process. They have either wanted to come in with their partner, or have asked to bring in their partner after having seen me first. So that’s what I’m now doing more than ever, usually alongside a financial planner who assists both of them, and with all of us around a table. I need to make sure, of course, that the couple understand my role, which of them I’m acting for and that the other should take legal advice separately. But so far it’s going really, really well and my clients seem to be delighted that they can see someone with their partner.
It’s not mediation, it’s not collaboration, it’s not “constructive negotiations” and it’s certainly not adversarial litigation. It’s something different and I think it’s going to prove to be very popular.
There’s an awful lot of talk in family law circles about ADR. Alternative dispute resolution. Mediation. Collaboration. On any analysis, there are hundreds, even thousands of experienced collaboratively trained lawyers and mediators, discussing these processes in their professional groups, on social networking sites and blogs. The usual thread is looking for help as to how one can get more ADR clients through the door
And yet there are thousands of couples out there who are walking through lawyers’ doors every year, and who are looking for better outcomes for themselves and their children. Despite this, and the apparent willingness of many family lawyers to work in a different way, most couples are still gorging on a diet of “constructive” negotiations at best and adversarial court combat at worst. Why?
I can’t say that I’ve got the answer, but I do know that for the past 5-6 years since I trained in collaborative practice and mediation I do not need more than one hand to count the number of my clients cases which have involved the courts (other than to approve an agreement reached). I think I have achieved this my making two changes to the way I worked.
The first was by abandoning my traditional lawyers’ training and embracing instead the benefits of the interest-based approach. The second was by realising that divorce for most couples isn’t much of a legal problem, but is usually a huge financial and emotional problem and since I know little about these, I make sure I work alongside family consultants and financial planners who do.
I’ve been invited to deliver a seminar/workshop at this year’s Resolution ADR conference in September along these lines. I hope I’ll find a bit more to say by then, or I’ll all be watching the tumbleweed blow through the seminar room.
I’m writing this because I have been stunned by the number of professional colleagues who don’t make it easy for anyone to contact them. Their emails will invariably not mention a contact number, but when it does it will usually be a generic switchboard number rather than their direct dial, as it will on their websites. I have asked two lawyers for their DD numbers recently: one told me they have only given the number to their daughter so I was to promise not to give it to a client or another lawyer; and the other said they’d rather not give out the number “because I tend to answer the phone rather abruptly”. It makes the whole challenge of building interdisciplinary family law communities so much more difficult, and suggest that some of us are light years away from a true paradigm shift.
It got me thinking how difficult it must be for their clients to contact them. You don’t need to engage in any sort of market research to understand that what clients want from family lawyers, is not necessarily what family lawyers want to provide. Clients want more free information, they want their lawyers to be process architects, they want better use of technology, they want less expense, they want financial, therapeutic, legal and negotiating experts and they want control over achieving better outcomes. And that’s just to begin with.
Family law services on the whole (and there are some exceptions) still seem to be hoping above hope that they can continue to deliver what they have always delivered, which is a one-size fits all approach where the lawyer is on a pedestal (because we’re important), where we are often difficult to contact (because availability equates to over-familiarity), where we want to meddle in things we know little about (psychology, children and money), and where we control the choice of process which typically stamps our ideas of fairness and outcome on others’ disputes. Inappropriately and expensively.
Lawyers are not alone in failing to deliver, though. Family consultants and financial planners – who have long been perceived by lawyers as junior partners in dispute resolution terms – are equally and sometimes more important in relationship breakdown resolution but they need to step up to the mark collectively by acting as equal partners and demonstrating what value they can add. Software writers, too, should be developing tools which aid clients as much as they aid the professional user.
Family law is not yet waking up in sufficient numbers to all of this, let alone smelling the coffee. I hope it doesn’t take the hard medicine of redundancies and closures to bring it home.
The widespread use by consumers of price comparison websites for legal services will cause lawyers to examine very carefully how much they charge. I say “will” because it seems inconceivable that professional services won’t be subjected to as much scrutiny as consumer products, insurance services, flights or household services are already. In fact there are already one or two websites already offering price checking. And when it really takes off, law firms need to be prepared to either justify their charges or face a rapid re-adjustment period.
Of course, I hear you say, people chose lawyers on recommendation rather than price. Well that may be what we want to believe and for many clients that’s bound to be true: some of the time. But many clients will undoubtedly look at the service they want to buy, and the firm’s rating before maybe choosing a lower priced firm for a lower risk service. And yet others will ask their favourite but more expensive lawyer what it is that is stopping them from lowering their prices. This will lead to downward pressure on fees.
Whatever lawyers’ views are on this – and let’s face it, most of us in the profession would rather it went away – it is one of the many changes in the pipeline which will have a significant effect on legal services, that there is no doubt. Simples, as someone said.
I was working for a small firm of solicitors eleven years ago. They had three offices in three different locations. Yet while I had the internet at home, I did not have it at work. In fact the computers were not even networked, and emails were used sparingly. In those days, clients still came to solicitors to find out what went on in a divorce. They needed legal information, and it was that need for information that brought them through our doors. Something as simple as wanting to know how much the court fee was enough to do it. It did not take much. And once they were in our lairs we were usually able to persuade them that they needed us to deal with the whole lot. A nice earner you could say.
Then the internet really took off, particularly when broadband went big in the early 2000s. Broadband Internet users, which now means over 50 % of the population, have access to information like never before. Such has been the revolution that printed encyclopedias have almost been consigned to history. In fact, when was the last time you went to your local reference library? And no longer do we need to trudge round the shops to find the lowest price when we can do it at the click of a button.
Family law services have not been unaffected by all of this. No longer to clients come to see us because they want to know how much the divorce court fee is: they look at the court service website. No longer do they need to come to us to get a divorce – online services can deal with most unopposed divorces as well as solicitors can, but at a fraction of the price. And online forums like Wikivorce provide a wealth of information and even free advice.
So why should lawyers embrace the competition? Quite simply because we are not competing for the same clients. The largest online divorce provider – unsurprisingly called Divorce-Online – offers a perfectly good service to those couples who are able to co-operate over the divorce process. They do not need lawyers to dissolve their marriage. Many of them are scared that using lawyers might mean they either end up spending money they cannot readily afford, or fighting over the divorce in a way they do not want.
There will still be work for divorce lawyers, but little of it will be the routine stuff which used to be our bread and butter, and more of it will be using our skills, or skills we need to acquire. I embrace online divorce services because they are part of a changing family law system which is going to enable clients to choose where they spend their money: routine information or specialised advice. If I was looking for a family lawyer’s services, that’s the sort of choice I’d want.