Appropriate dispute resolution

This paper, given to the Four Jurisdictions Conference in Nice this year, discusses how family law can make a difference for the better by careful choice of the most suitable method of resolution

18th April 2005 | Anne Hall Dick

Introduction

Family law developed during the 20th century in a radical and relevant way. The transition from a patrimonial system which had treated women and children as possessions had accelerated to provide a complex legal system which emancipated first women then children within the family context. It provided sophisticated mechanisms to deal with family breakdown. Dealing with family law combined a need for knowledge of facts and about what makes people tick. It demanded the use of both analysis and intuition. A real workout for heart and mind!

Today I would like to consider how that evolution of and revolution in society and the legal framework affected the context in which family law operated. I would like to look at the ways in which the law can be used to resolve issues and then explore the impact the choice of the method of dispute resolution has on the individuals involved.

Changes in society and the legal framework

Family breakdown began to be perceived and treated in law as sad, rather than bad. It became socially acceptable, albeit not desirable. Changes to the black letter law were only part of the transition – perceptions as well as legal rules were changing on the part of both advisers and clients. Organisations such as Women's Aid and Mediation developed. Lawyers were very much involved in the start of such initiatives and there was a powerful exchange of knowledge and experience.

It became apparent that the black letter law itself was only one element for lawyers who were helping families in transition. What are now referred to as “soft skills” in advisers began to be recognised as a vital factor in allowing the legal rules to make a difference. This was part of a wider change towards a less hierarchical society which in turn affected the public perception of professionals. It is not enough for the professional adviser to be right – he or she must also be helpful (see “The Trusted Advisor”, by Maister, Green and Galford, Free Press distributed by Simon and Schuster Inc).

Clients had to feel heard to feel helped. They had to be heard for the right remedy to be identified. This process had to involve not just collecting factual information but also gauging the emotional climate. A client in the grip of a strong emotional reaction will not be able to make informed deliberate decisions for the future. If that is not recognised then a client may become trapped in what should have been a reactive transitional state rather than helped move into a more constructive planning stage.

People were looking for advisers (both legal and medical) to provide relevant information in a structured and intelligible way and to be helped assess the implications of the information, rather than being given limited information and told what to do. Research into negotiation highlighted that many clients felt they had not received enough information about the range of options available and that the negotiations were too conflictual: “…solicitors assumed the best approach was to obtain the maximum financial settlement possible, even if this was impractical for the other party to meet… A solicitor who took a relatively neutral stance and who outlined the options available and advised on the long-term implications of certain decisions was preferable but rarely encountered [by the respondents].”

Clients wanted to feel respected, not patronised. The importance of this cannot be overemphasised. When conversations between patients and a group of doctors who had been sued by patients at least twice and a group who had never been sued were analysed, a fascinating difference between the groups emerged. The information provided by both groups of doctors was similar but the group who had never been sued were more likely to outline the structure of the conversation at the start, engage in active listening, introduce some humour and spend a little more time (three minutes) with the patient. The difference was not in the factual content of the discussion but “entirely how they talked to their patients… in the end it comes down to a matter of respect, and the simplest way that respect is communicated is through tone of voice, and the most corrosive tone of voice that a doctor can assume is a dominant tone (“Blink”, by Malcolm Gladwell).

A further factor was that with the increasing complexity of family life and family law the number of possibilities for a restructured family in terms of both child and financial arrangements increased. Separation triggers very significant practical and emotional challenges. Many things have to be sorted out and decisions made between alternative options. The decision making will be driven partly by practical considerations and partly by how people feel about the situation.

The legal rules can provide a useful reminder about joint responsibilities parents have and an objective benchmark for fairness in financial matters. Knowing the legal rules will rarely give one clear answer immediately acceptable to all concerned.

Instead, a spectrum of possibilities will be identified, leading to the need to consider which legal process to use to allow plans and decisions to be finalised.

Methods of dispute resolution

The ways in which decisions can be arrived at following family breakdown are varied. Some separations are managed by direct discussion and little third party help, usually where both adults have arrived at recognition of the need for a separation at about the same time. It is more common for one person to have reached the decision ahead of the other. In that case, the other person is faced with a total re-engineering of their place in the world, their identity, without any wish for such a radical change. They may also be caring for children similarly unaware of the likelihood of a huge disruption and resistant to such a possibility. In many cases it will mean a lower standard of living and potential change in home and school. Little wonder that some outside help and objective standards of fairness might be needed to make plans for the future.

The ways in which that help may be accessed are mediation, collaborative family law, negotiation, arbitration or litigation.

Since many couples separating have children, it is likely that the transition is from being a couple to being separated parents. Even if there are no children, there will be a network of extended family and friends and a shared history. As mentioned, often the decision to separate is not a joint decision. For both parties, the consequences involve enormous changes in the core aspects of life. It is the ending of one relationship and the beginning of another connection. The changes have significant emotional and practical elements. They pose risks and present opportunities.

The spectrum from mediation to litigation reflects the degree to which a couple involved are able to retain responsibility for decision making or need to invoke the formal process of law for protection or to force disclosure of information.

Mediation

Mediation can help couples identify a mutually acceptable formula for settlement by direct discussion between the parties. The mediator facilitates the process by providing a clear structure for the discussions and using skills such as acknowledging, mutualising (to emphasise common ground) and reframing, in addition to active listening and careful summarising and clarifying. Reframing involves restating something one of the parties has said by way of complaint as a solvable concern or legitimate aspiration.

A mediator may provide legal information (though not advice) to help allow workable plans to emerge. Those plans will then normally be formalised in a written contract by advising solicitors. Mediators need not be qualified solicitors but lawyer mediators can allow immediate access to legal information which can be helpful to allow progress to be made.

Although it is still considered a relatively new innovation, mediation “has a long history in many different civilisations and cultures. As long ago as the fifth century B.C. Confucius was urging disputants to use mediation in order to reach agreement through rational, constructive discussion with a third party,instead of resorting to litigation” (“Family Mediation”, by Lisa Parkinson).

Collaborative family law

Collaborative family law is a recent innovation to Europe. It enables a couple to each have the support of their own advising lawyer through a structured series of meetings with a commitment from the couple and the solicitors to use a solution-seeking approach. If matters cannot be resolved by negotiation then the collaborative solicitors cannot take matters forward by litigation. The couple would both have to instruct new solicitors. Solicitors who are trained in collaborative law may litigate for clients where they feel that would be appropriate, but simply cannot litigate for any client they have represented using collaborative law.

“Collaborative law combines the explicit commitment to settlement that is at the core of mediation with the enhanced creative power of a model that builds into the settlement process from the start individual legal advocacy and counsel, as well as conflict management and guidance in negotiations” (“Collaborative Law – Achieving Effective Resolution in Divorce without Litigation”, by Pauline H Tesler).

Negotiation

Negotiation again allows each client to retain his or her own advising solicitor through a process of exchanging information and looking for terms which will be acceptable to both parties. The Harvard Negotiation Project, at Harvard University, works on negotiation problems and develops and disseminates improved methods of negotiation and mediation. A product of the project was “Getting to Yes”, by Roger Fisher and William Ury, underlining the drawbacks of positional bargaining and setting out an approach which has been described as “win/win” or “gain/gain”. It avoids seeing negotiation as a fight over how big a slice of cake each person might get (in which in fact both usually end up with crumbs). Instead it is more like taking the discussion back to the ingredients to see if there’s a better way of using them which will suit all concerned. The structure of family law makes this approach particularly appropriate.

Family law arbitration

Family law arbitration enables parties to select a family law specialist as arbiter and provides a structure for assembling the relevant details, allowing the information and possibilities to be explored then for a binding decision to be made. In Scotland at least, it seems likely that arbitration was known before the introduction of public courts (“The Law of Arbitration in Scotland”, by JM Bell).

The arbitration process may involve relatively restricted issues and be dealt with by written evidence and submissions, or may involve a wide range of issues and be dealt with by the equivalent of written pleadings and evidence from witnesses. It can allow matters to be dealt with on an inquisitorial, rather than an adversarial, basis.

It could be a useful adjunct to collaborative family law as there is the potential to refer very specific, agreed issues for decision in this way from the collaborative law process without the need for a change in advising solicitors.

Litigation

Litigation provides the most formal decision-making process in which each person asks for the remedies they seek, with information and legal argument in support of the request, and challenges what the other person wants. The court makes a decision on the basis of what has been established. The outcome is binding and enforceable.

Litigation can clarify grey areas of law and provide protection from extreme behaviour.

Benefits and potential disadvantages

Each of these approaches has potential benefits and drawbacks.

Mediation

Mediation allows total direct control over decision making and enables better lines of communication to be established in the re-ordered family, but if one person is really not prepared to make plans for a separated future or is deceitful or overbearing then the process may founder or be inappropriate.

Collaborative family law

Since there can be no inappropriate threat of litigation and there is a commitment to full disclosure of information, the climate is very much geared to solution seeking, but if a solution does not emerge then the parties involved would need to start again with new solicitors.

Negotiation

If one or both of the parties feel too hurt or nervous of the other then they need not sit in the same room as their partner, but misunderstandings can happen inadvertently and if agreement cannot be reached then litigation might still be necessary.

Arbitration

The exchange of information and initial exploration of options is managed by the arbiter as a neutral third party with a degree of flexibility and the arbiter will make a decision, but if one party were very determined to be obstructive then forced disclosure of information would be more cumbersome.

Litigation

Litigation provides remedies if there is violence, dishonesty or pathological non-co-operation, and a decision will be made, but the process is based on an adversarial system which highlights differences and does not encourage flexible or innovative outcomes.

Child Support Agency

It would be wrong to ignore the existence of the Child Support Agency. In the UK the Agency casts a shadow over even privately-ordered arrangements because a written contract will not exclude the possibility of a CSA assessment in the future.

The CSA is perceived as rather a baleful presence. The problems the Agency has encountered have emphasised the difficulty in trying to deal with even the restricted area of financial provision for children by formula. It emphasises the need for an element of flexibility.

General considerations

It is very important to make the right choice of dispute resolution process. The wrong process could either make matters seem more bad tempered and polarised than they need to be or could leave insufficient protection against bad faith or bad behaviour. The right choice can help what seemed like the end of the world become a transition to a different but manageable future.

Separation is a very significant step but one which is no longer unusual. The fact of a separation implies that there is no longer a common future purpose between a couple and so it is appropriate that having separate advice is recognised as normal and advisable. However there is a risk that this starting point will lead on to an assumption of a need for an adversarial approach where that is not the case.

It is crucial that we recognise how far the legal climate might affect the way in which clients perceive the situation. If adversarial language is used, if letters from solicitors come from “the litigation department”, if legal advisers become megaphones rather than filters, this is liable to create a battle mentality and “prime” clients to behave in a more aggressive and unreasonable manner. If, on the other hand, legal advisers “model” courtesy and co-operation that increases the chance the clients will follow suit (see “Blink”, pages 52-61). This does not imply that bad behaviour should be ignored, rather that sometimes bad behaviour can be generated by the way in which a process is conducted and is rarely modified by being responded to by other bad behaviour.

It is also crucial to recognise that separation is a process which unfolds over a fairly long period of time. Although the legal intervention may seem to the parties to take longer than they would wish, it is likely that it will still only be a segment of the evolution of the changing shape of a family. It is the parties, their children, family and friends who will deal with the consequences of the decisions made. The more the legal process can in itself make a useful contribution to the ecology of the family the more it is likely to help the family long term. If the potential for co-operation is fostered then the foundation for future co-operation is reinforced. If one partner has behaved badly and that has been firmly dealt with in a court process, then a valuable message has been sent.

It is essential for individuals to be aware of the range of dispute resolution options as part of the relevant information they need to decide the best way forward. They need help to assess each one.

It is also essential to avoid fudging the benefits of each process once the choice has been made. If a negotiation is conducted as if it is an adversarial court action riddled with positional bargaining and exchanges of florid allegations then the parties get neither the benefit of solution seeking nor the structure of court proceedings. They may either end up in court or with an unsatisfactory compromise born out of exhaustion.

If court proceedings are raised because the level of conflict or intransigence is so high that no amount of interpersonal skills will resolve matters then clear, practical decisions from the bench are likely to achieve much more than attempts at judicial mediation or an exhortation to legal advisers to “knock heads together”.

It is also essential that the law does remain relevant and accessible. If the lack of legal aid means that some people cannot make use of the legal process then justice is undermined not just for those people, but for everyone. If the legal rules do not keep pace with changing society then, again, justice is undermined.

Weighing the options

Bearing all this in mind, it is advising solicitors who take the initial responsibility for helping people find the right way to resolve their differences. There are various elements to consider, including the client’s emotional adjustment and the recognition that there are some stages and skills common to each process.

Emotional adjustment, acknowledgment and shift in perspective

The client is making an emotional adjustment from denial to acceptance and hopefully at some point to optimism. Acknowledging wherever they are in the spectrum of adjustment is the first and most powerful way of letting someone feel understood. This should be done without siding with the person. Acknowledging emotions is not the same as reacting to them. Recognising and naming strong emotions is likely to be necessary from time to time.

The next step is to be informed about the situation on a factual basis. Part of that is to ask what is likely to be important to the partner. Doing that will give valuable insight into what might be common ground, what will not and, crucially, help the client to start to shift perspective. Following separation the tendency is for each person to make sense of the separation by seeing the other in the wrong. An agreed settlement will only be achieved if both parties find it acceptable. Laying a foundation for that possibility cannot be done too soon.

During the initial assessment process it should also become clear if there are worrying elements suggesting violence or dishonesty.

Stages

The ideal objective is to help parties attain the most positive emotional state and achieve the most workable decisions. There are core stages required to realise those objectives whatever process is used. Each process involves ingathering, clarifying and analysing information and considering and exploring options from each person’s point of view with a view to decisions being made.

Factors which are important to young people involved need to be established. If financial provision is involved then accurate information about money and property will be needed to make reliable plans for the future. Factual information about potential housing and education fall into the same category. Tax consequences have to be considered. Possible options must be identified and assessed. If sufficient information is assembled and the parties have been helped to keep or achieve a receptive frame of mind then the shape of workable plans can often present itself.

Skills

Acknowledging can be developed into mutualising and reframing to help the client shift perspective. This is needed to either allow the possibility of agreed arrangements or for the client to be able to accept advice about prospects if matters have to be resolved by third party decision making. Clarifying and summarising information is required for accuracy and completeness. Asking appropriate questions is a vital element. Information has to be given and options considered and explored.

Qualities

All those involved effectively in the decision-making process need to demonstrate courtesy and competence. If the parties are to make their own decisions then they will need to be helped with compassion and insight. If the decision is to be by a third party then to all those qualities will have to be added the necessary wisdom and authority (which are also required in more muted form in the other processes of course!).

When ready to explain the different processes for clients this could be done in a series of questions:
Would you be able to sit in the same room as your partner and a neutral third party to consider plans which would be workable for you, your partner and any children involved?
If the answer is yes, mediation may be right.

If the answer is no, the next question could be:
Would you be able to sit in the same room as your partner, both advising solicitors to consider plans which would be workable for you, your partner and any children involved?
A positive response could mean that collaborative family law may be right.

If not, the next question could be:
Can you discuss matters with your own solicitor and consider the plans that are best for you and let your lawyer see how much of that can be achieved, with a lawyer doing the same for your partner?
If so, negotiation may be right.

If not, the next question could be:
Would you both provide the financial details and other necessary information to a third party who is a specialist in family lawyer, who would explore the possible ways forward with you and your partner then make a decision binding on both of you?
If so, arbitration might be right.

If not, litigation is the remaining route. It would be the right process to use if there is a complex legal issue or abuse or dishonesty about financial matters.

Conclusion

Separation is a process of change involving factual, emotional and legal aspects. It affects the wider family and the friends of the parties involved. It involves the construction of a new identity for each of the participants. There is a point where each participant must live out that new identity without the support of the legal adviser. Some couples will have had a reasonably equal relationship before separation and have both come to accept the fact of a separation. It is likely that they will appreciate and benefit from taking as much responsibility as possible for structuring their more individual futures. If a separation is very much a unilateral decision then it is likely that more input from professionals will be needed to allow plans to be made and act as a buffer for the emotional eddies. Where one person has been aggressive or dishonest then probably the full strength of the legal framework will be needed, as it will if there are complex or novel issues of law.

The crucial aspect is that this assessment should be a very conscious part of the process. The consequences of the wrong process being used could be very damaging indeed for a family. If a co-operative couple find themselves advised by solicitors who see family law as part of their litigation department and have the issues to be sorted out defined as a dispute rather than a problem-solving exercise, then friction and misunderstandings might well arise. If someone who has a dishonest and manipulative partner is urged into the mediation process then the power imbalance within the couple may either block that process or not be sufficiently apparent, leading to an unfair outcome.

Although the black letter law and the ways in which it can be applied have undergone a radical transformation in parallel with the changing face of family life, there are some historical residues which can be unhelpful. One is that the adversarial climate of the civil courts tends to cast its shadow over even private arrangements. The vocabulary used may be of opponents rather than solution seekers. Most specialist family lawyers make real and effective efforts to avoid this (and the Family Law Protocol sets out a very different approach where it applies). However, many couples are still likely to encounter adversarial language and the threat of court proceedings at an early stage as a lever, rather than be helped engage in an exploration of possibilities which are generated by the facts and the legal rules.

In litigation there is a significant emphasis on the past and often much time devoted in adjudicating between competing accounts of historic factual information from the past. The outcome is seen in terms of winners and losers. The process tends to encourage blame apportionment. Civil litigation is also a process associated with sorting out the consequences of events which are unusual and blameworthy departures from what was contemplated. It could be said that separation falls into that category – few couples marry or set up home together consciously planning to separate. Where there is violence, dishonesty or intransigence then it is essential for that to be identified and dealt with firmly in an adversarial process.

In the remaining cases, however, comprising the majority of families, agreed rather than imposed settlements may well be appropriate, but are sometimes only achieved after a very adversarial journey. This is not because lawyers and the legal system deliberately inflame a situation, rather that sometimes the legal process and language used fail to dowse fires already smouldering.

The journey through separation tends to be through rather uncharted territory for most people. There are few publicly marked stages or rituals – each family has to find their own way to a large extent. The common denominator tends to be consulting a lawyer. Pauline Tesler, an American lawyer who was very much involved in the development of collaborative family law, describes family lawyers as being, by default, “the high priests of divorce” (“Collaborative Law”, by Pauline Tesler). Perhaps more conscious awareness of the importance of the legal process as rite of passage might be helpful.

Although no longer unusual, separation remains an enormously significant step which will often seem to threaten the most basic elements of a person’s security and identity. A couple who had planned a life together now need to plan a life apart, a very different project. It is appropriate that their decision making should be assisted – it is less appropriate that it should be hijacked!