There is a surprising hesitancy amongst lawyers to offer out-of-court private dispute resolution options for separating couples. Why?
Financial advisers want the best for their clients. During a divorce, they can often find themselves in the best position to help their clients choose the most appropriate option to reach a resolution, while continuing to provide financial and tax advice as things move on.
However, many may have been flummoxed by the lack of flexibility that lawyers often bring to the table, particularly on the best route for resolution.
This is a common experience. I have come across too many lawyers who seem unwilling to pursue other dispute resolution options aside from litigation, despite those options being speedier, less costly and more amicable in its processes.
These include: arbitration; early neutral evaluation; 'one lawyer, two clients', including resolution together; and private hearings undertaken outside the court process by experienced and specialist counsel, solicitors and retired judges.
Why then, are these far better options not used much more frequently?
Lack of awareness is certainly part of the answer. It can also come down to poor experience and therefore fear, of how these are likely to play out. Neither of these is acceptable and neither should be tolerated.
Clients look to their lawyers for advice as to how best they can achieve a resolution. They are very likely to accept that advice.
Strains on the system
And in this country, far too many couples still end up going to court. Every week there is another headline about how the family justice system is struggling to cope, yet we, as lawyers, are part of the problem.
I always think this must be felt acutely by financial advisers, who have worked for clients before the divorce, to see their financial stability put more at risk, and their outlook more uncertain due to the long and costly process of litigation.
To put this into perspective, in 2023 the courts faced 44,563 applications about financial issues. This had increased by 11 per cent since 2022.
Lawyers are doing a disservice to their clients by their lack of engagement with other dispute resolution options, while at the same time unnecessarily increasing the burden on our creaking family justice system.
To paint a wider picture of the other pressures facing the family courts, last summer The Law Society reported that the family court system was in “crisis”, with tens of thousands of children “being left in limbo” due to it taking a year or more to resolve care proceedings, where local authorities felt they were left with no alternative but to take children away from the care of their parents, and parental separation cases.
While 2023 saw a minor fall in the number of applications where parents could not agree about arrangements for their children, there were still 50,798 such cases started. That is likely to involve more than 100,000 children every single year.
