News

Collaborative Law in England and Wales: early findings | 4 March 2009

Collaborative law is a relatively new process. Worldwide to date there is little empirical research into its developments and benefits.

This study has two aims:

1. To gather baseline estimates of: numbers of collaborative cases undertaken, growth, characteristics of clients and cases, success rates, timescales and costs relative to other processes

2. A qualitive analysis of the process for lawyers and clients

In England and Wales, the first group of 12 lawyers trained in late 2003. By the end of 2005 around 600had trained and by the end of February 2009 there will be over 1,250 trained collaborative lawyers in England and Wales.

Initially collaborative lawyers were trained by US based trainers. Resolution developed a bespoke collaborative training for its members which rolled out in September 2006 and has now built up a team of specialist trainers in this area.

What the survey shows

1. There hasd been a substantial increase in collaborative cases over the surveyed 2 year period (2006 and 2007) The respondents to the survey who represented 30% of the then trained collaborative lawyers reported opening 304 cases in 2006 and 558 in 2007

2.It calculates that over 2,800 collaborative cases were opened and almost 2,000 were completed during the surveyed period. The vast majority of couples choosing the collaborative process had children

3. 1/5 of the lawyers taking part in the survey reported that they had dealt with cases where the total family assets were valued at less than 100,000

4. Over 1/3 of the lawyers taking part had dealt with cases where the assets were betweeen 100,000 and 250,000

5. Overall at least 2/3 of the cases settled collaboratively had settled earlier than they would have done had they been dealt with traditionally

6. Some survey respondents who carry out publicly funded work reported that they had had clinets who were eligible for public funding and who cases would have been suitable for the collaborative process had public funding been available to fund it. Settlement rates are high on average round 85% of the collaborative cases settled

7. The process allows the parties to achieve more flexible and creative solutions adapted to their particular family circumstances. Lawyers reported that some outcomes could not have been achieved via litigation or conventional negotiations examples include:

Cases involving cohabitants, with more generous settlements being reached than would have been possible if the law relating to cohabitants had been strictly applied. This was particularly welcome to the parties where there were children and involved them agreeing to treat their situation as if they had been married.

Cases where financial contributions from other family or future family members were taken into consideration, in one case there was agreement that part of the financial would be funded by a portion of the proceeds of sale of a property owned by a new partner, and in another instance a parent in law loaned money to the ex spouse.

What the lawyers said

1. Effective screening to determine client suitability for the collaborative process is absolutely vital. Generally the lawyers look for sufficient degrees of trust and respect betweeen the parties, some mutual recognition of needs, a lack of unrealistic expectations, an ability to communicate with and be civil towards each other and a shared concern for the welfare of children and their relations with their parents and for their own relationship as parents. Evidence of domestic abuse, mental health issues or alcohol abuse might rule clients out unless safeguards could be developed. A high degree of trust between the two lawyers working on a case is key to its success.

2.Providing legal advice is an essential element of the lawyer's role. Several lawyers remarked that whilst collaborative clients want to know what the law is they may not necessarily want to follow what it is. Legal advice can also provide a reality check on expectations.

3.They are increasingly recognising the value of bringing in other professionals to the process.

4. Lawyers expressed dissatisfaction with what other processes provided for their clients, together with a belief that collaborative law provided a better way. They were receptive to the collaborative process for personal as well as professional reasons one cited "feeling better about myself, and my job as a lawyer" another described discovering collaborative law as "a bit like a dark cloud lifting."

What the clients said:

"We are both very pleased that the process existed, because it.....was a kind of embodiement of the kind of divorce we wanted."

"It's much better to be around the table discussing things rather than letters backwards and forwards between the solicitors....you're able to keep a lot of goodwill between you by doing that."

"For me it has been a positive and helpful way of resolving something that I didn't want in the first place"

"I'm glad that we did do it that way. Now standing here at the end of it, knowing how much it cost, and how distressing even doing it that way was....I'm glad I didn't have anything more stressful."

"I think anybody contemplating it would have to be aware of just how traumatic it is, to actually sit down and discuss something in very dispassionate terms, when you are not actually feeling that way"

"I was very happy.....I've seen people go through long drawn out divorces and its horrible"

Its not easy! It can be emotionally difficult process at least some of the time.Some found the 4 way meetings uncomfortable and tense. Some of these concerns obviously reflect the emotional difficulty of divrce in general, rather than the collaborative process in particular.

They needed good support from the professionals

More than 1/2 of those interviewed were very positive about the process and of the rest most were quite positive. Only one said the experience had been negative.

Clients liked having other professionals such as counsellors and financial advisors in the process:

"I hadn't thought about it [before] but it did turn out to be very welcome."

"I found it enormously helpful."

Lessons for the future:

Family Legal Aid: Going the way of the NHS Dentist | 20 October 2008

Lord Carter's proposals for radical reform of the legal aid provision aim to restrict costs. the danger is that these reforms will also cut access to justice for many. Just like NHS dentists there may well be a family legal aid lawyer in your high street, but more and more people are finding that these firms are overwhelmed with work and that they face a long wait before they can get an appointment.

The Legal Services Commission claim that 96% of the population live within 5 miles of a family legal aid firm but the key issue is the capacity of those firms to take on the work. If you need urgent advice it isn't much help if you have to wait weeks or months before they ahve capacity to take on your case,

There has been a massive decline in the number of family legal aid contracts from just over 4,500 in 2000 to now just over 2,700. Lord Carter in his analysis took the view that there were far too many firms undertaking legal aid work and that the scheme could be operated more efficiently if it was undertaken by larger firms with increased volumes, enjoying the benefits of economies of scale. There is contradictory research as to whether or not this claim is sound. There is little evidence from either the Commission or within the profession itself that firms are able to expand.

Time must be allowed for a full and careful analysis of the impact of the reforms on the financial viability of firms, but most especially on the public's ease of access to justice before further reforms are introduced.

Changing the law for people who live together | 20 October 2008

Resolution has joined forces with one of Britain's top law makers, Lord Lester of Herne Hill QC, to introduce a Bill this autumn to end the injustice and financial hardship faced by thousands of cohabiting couples, carers and siblings who live together.

Lord Lester has a strong track record of achieving change. In 2006 he successfully introduced what becaome the Forced Marriages Act 2007. His Privte Member's Bills were intrumental in developing the Civil Partnership Act 2004 and the Human Rights Act 1998.

The characteristics of the modern family have changed dramatically over the past 50 years. People are living longer a, caring for elderly parents, cohabiting rather than marrying and having children out of wedlock. Family law in England and Wales is out of step with these realities and therefore the lives of a significant number of families.

Since 1996, the number of cohabiting couples in the UK has risen by more than 50 per cent to 2.2 million - one in six of all couples. Equally, an ageing population means that some 500,000 adults now spend 20 hours a week or more caring for a parent or parent-in-law, many living in the same home.

It is clear that the way we live is changing and our laws must change to match.