Pathways to justice

An important report has been issued, titled Pathways to Justice, following three years’ research by the Universities of Exeter and Kent into awareness, usage, experience and outcomes of the different out-of-court family dispute resolution processes (FDRs). It did not include arbitration, but considered solicitor negotiations, mediation and collaborative practice.

A key “best practice” identified by the report has an interesting resonance for Scottish solicitors: “Clients should receive clear, accurate, neutral information and advice on available FDRs and their strengths and disadvantages, tailored to their situation and with sufficient opportunity to discuss concerns and reservations.”

The wording is a reminder of the recent Law Society of Scotland guidance about the need to provide advice about the range of dispute resolution options.

• Some other important findings include:
• Practitioner knowledge and experience of what different FDRs have to offer is a key factor in enabling informed and appropriate choice.
• There are benefits in “joined up” support to allow some counselling or therapeutic intervention to enhance capacity to reach agreement.
• One size of dispute resolution does not fit all.
• Suitability depends very largely on the disposition of the parties, rather than on the nature of the case.
• Choice of FDR is linked to clients’ awareness and emotional states.
• Clients would be best served by an attitude of mutual respect between FDRs and family courts.

The report sets out very helpful indicators for how to assess suitability, and flags up a number of points about each process, including:

• the potential for creative problem solving in mediation, and also the challenge involved for participants;
• the appreciation of having a buffer in solicitor negotiations, and also the perception that the process exacerbated conflict and hostility;
• the benefit of the collaborative process, with the signing of a participation agreement and capturing of an “anchor statement” at the outset and a high level of satisfaction reported for both process and outcome, while recognising that there was a smaller sample of collaborative cases.

Best advice

The internet and the media are key sources of information for the general public about how to sort things out on separation. For the moment, solicitors remain the major source of information about this for couples who are actually going through separation. South of the border there has been more focus on mediation, with information meetings, currently called MIAMs (mediation information and assessment meetings), as a first port of call. The report proposes that these meetings should be renamed dispute resolution information and assessment meetings (DRIAMs), and that they should be provided independently of substantive dispute resolution services to avoid any conflict of interest.

So what relevance has all of that for solicitors in Scotland?

We have the opportunity to demonstrate that by full and informed compliance with the Society’s guidance, we can continue to be entrusted with advising clients about the critical step of choosing how to sort things out, in addition to advising about the black letter law.

We will be best placed as practitioners to do that by fully understanding the full range of dispute resolution options.

CALM, the organisation for solicitor mediators, and Consensus, the organisation of collaborative practitioners jointly provide training in both processes in a portfolio of training. The good news for any practitioners who have not yet undergone any of these training modules or courses is that the predominant feedback from them can be summarised as: “Just do it. This was useful for all areas of practice (and life), it was very enjoyable and every family lawyer should do this.”

Details of next year’s Portfolio training can be obtained from geo.byars@flmscotland.co.uk

Details of the research can be found through this link: bit.ly/13cvYix