Supporting Separating Couples Consultation a ‘moment in time’

The “Supporting earlier resolution of private family law arrangements” consultation launched by the Government in May is “a moment in time” when the government are engaged in the discussion which won’t come round again warns Sir Andrew MacFarlane. 

In his keynote speech addressing the Resolution Conference on Friday 19th May MacFarlane spoke to delegates of the importance of the issue, and urged practitioners to get involved and respond.

The consultation, which was launched earlier this month includes proposals for mandatory mediation for ‘low-level’ cases in an effort to reduce the courts backlog, citing the success Mediation Voucher Scheme which has yielded an “impressive 69 percent success rate… the scheme has made it possible for over 13,500 families to enlist the help of mediators and reach full or partial agreements, without the need to go through a potentially long and adversarial court process.”

On the final point, MacFarlane reminded attendees at the conference that the way people start their journey is often the direction of travel they will take throughout proceedings; beginning in an adversarial manner will result in that sentiment being carried throughout the process.

In his speech MacFarlane also provided an update on the private law portal currently being tested in Swansea and 4 other sites which he said would not be rolled out before all the issues were ironed out, to avoid the initiative suffering a similar fate as the private law portal.

Echoing the words of MacFarlane, Barbara Mills KC followed adding that family courts are overwhelmed. There are, she said, 110,000 open family cases of which 86,000 are private cases, with an average case taking 12 months to finalise. Providing a clear call to action to delegates Mills said that cases must, as far as is possible, be kept out of the courts. Acknowledging that legislation has been slow to keep pace with changing society, she invited the audience to “start where are, and make more of what we have,” outlining a few key points to consider.

  1. As a profession, make a more concerted effort to resolve cases outside court using the options available
  2. Use mediation as it is statistically one of the best known of the options to help couples make their decision
  3. Engage in the consultation
  4. Embrace “one couple one lawyer” which represents a “huge shift”
  5. Ensure forms reflect all the options available before an application is made and court is used where no other process will do

Mills also highlighted the use of arbitration as a way for parties to retain some control of the outcome and suggested that there should be some consideration for an extension of cases where arbitration can be used.

Asked later in the day what delegates thought would be the predominant way of resolving private family disputes in 10 years time over 1/3rd of the room (37%) responded by saying solicitor negotiation, 33% said mediation and 11% said court. And asked directly about one lawyer, two clients 72% of the room said they are either already doing the work (17%) or planning to in the future (55%). 12.5% responded saying they have no intention of offering the service.

The “Supporting earlier resolution of private family law arrangements” consultation is open now until 15th June 2023.

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