Two family justice announcements herald the start of a period of potentially great change in family law, with an ever-increasing focus on non-court dispute resolution.

Edward Cooke

Edward Cooke

Laid before parliament on 7 December 2023, the Family Procedure (Amendment No 2) Rules come into force in April 2024. The changes flowing from this include a new requirement that a party must file with the court and serve on the other parties to the proceedings a form setting out their views on non-court dispute resolution, as a means of resolving the matters raised in the proceedings.

On top of this, an amendment to FPR 28.3 (7) provides that, in financial cases, as a reason for departing from the no-order-as-to-costs presumption, the failure by a party, without good reason, to engage in non-court dispute resolution could lead to adverse costs orders being made. Coupled with this, the court will also have the power to adjourn proceedings to 'encourage parties' to attend to undertake non-court dispute resolution.

Secondly, on 26 January 2024, the Ministry of Justice published its long-awaited report on the private family law early resolution consultation. Although this saw the government step back from its earlier suggestion of compulsory mediation in family cases, many key recommendations make clear that the future of family law is in out-of-court resolution, save where court cannot be avoided, such as in some cases of domestic abuse.

Despite these seemingly seismic changes, the training of many family law solicitors appears to lag substantially behind the curve. Given the central focus on non-court dispute resolution, it would appear all family lawyers require some training in this area, but this does not always seem to be so. For example, the only current mandated training for lawyer members of Resolution (the nationwide organisation of family law professionals) is a three-hour Code of Practice course. This deals principally with the application of the Resolution code. Beyond that, there is no requirement for lawyers, even Resolution members, to undertake any training beyond that point in either non-court dispute resolution or skills essential to keeping disputes out of court.

Statistics on training family lawyers in non-court dispute resolution are not widely available; however, of just over 6,500 members on Resolution’s website, just over 1,300 are listed as being trained in mediation or collaborative law. Thus, just one in five Resolution members are trained in one of the two key methods of non-court dispute resolution.

One of the November 2020 Family Solutions Group (FSG) report’s key recommendations was that all family law professional training include:

  • parental conflict’s harmful effect on children,
  • the importance of the voice of the child,
  • screening and awareness of domestic abuse (including coercive and controlling behaviour),
  • mental health, personality disorders and addiction issues (a feature of high-conflict cases),
  • the full range of alternatives to court proceedings, and
  • the importance of an interdisciplinary approach to family law.

During the three years I co-chaired Resolution’s Training and Learning Committee (until May 2023), the committee worked hard to develop a diploma covering these matters and the essential skills we felt all family lawyers required to assist their clients in the new world: communication, managing high-conflict cases and principled negotiation. Hopes were to pilot an accessible, affordable diploma to roll out to all family law professionals, ensuring all lawyers could support their clients in the most child-focused and proportionate way through separation, where possible out of court.

Resolution launched its diploma pathway last year, but to date training is not mandatory. While various components of the training diploma are being rolled out, they are still voluntary. I believe that many of these modules should be mandated – if this is to happen then I believe it would be important that the modules are priced as affordably as possible to ensure they are accessible to all.

Any enhancements to the regime for training family law professionals is clearly to be lauded. However, surely the time has come for a more joined-up approach, ensuring a commonality of training in key areas, so as to ensure clients meet family solicitors who are all trained in the core areas that affect day to day practice as identified by the FSG.

Many excellent family lawyers are not trained in non-court dispute resolution, but promote it and conduct their cases in a principled, child-focused way. Yet, just as it would be extraordinary if family law barristers had no training in cross-examination, writing opinions or skeleton arguments prior to practicing at the family bar, it seems astonishing that there is no mandated family law training for solicitors in the essential skills required to keep cases out court.

Surely effective conduct by solicitors of out-of-court settlement meetings in a collaborative fashion is as essential to clients as having expert representation by their advocates in court. And I would argue that it is just as important for clients to have solicitors who are properly trained to support them appropriately in all forms of non-court dispute resolution, including mediation, as they are to represent them in court.

Firms like mine are committed to training all our lawyers in collaborative law (a three-day course with Resolution costs just £1,000) or mediation. In the ideal world, I believe all family lawyers should train collaboratively: it is a very modest cost for a fantastic professional training which benefits clients. If Resolution were to mandate this training for all members, it could have a revolutionary impact on the take-up of collaborative law, which has sadly stalled in recent years due in part, I believe, to a lack of trained professionals

I do not suggest for one moment that all family lawyers should have to requalify as mediators. Not all lawyers want to become mediators, nor should they, however I do believe that the introduction of certain core training elements for all family law professionals, including a good understanding of all non-court processes, is now essential. The FSG recommended this three years ago. To ensure the best chance of success with the reforms coming on stream over the next few months, it is surely time to introduce mandatory training in key areas of practice.

 

Edward Cooke is a family lawyer and mediator, and founding director of Edward Cooke Family Law

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