In October, together with two YRes colleagues, I made the keynote speech at Resolution’s annual Dispute Resolution conference. The article below summarises the key points of our speech, based around the changing needs of families of the future and how family lawyers can best support them.
The family law landscape is in near-total flux. The lawyer is no longer an enigma in the eyes of the public. Gone are the days when all men needed “a doctor, a preacher and a lawyer”. The lawyer/client relationship needs to change. Like all other service providers we will only be successful if our offering meets the changing needs and expectations of clients.
To do this, we need to recognise who our clients are and the factors that shape and influence their lives. Pressures on family life continue to increase, such as Brexit uncertainty, rises in inflation and changes to the benefits system. Consumer debt is high. The housing market is tough, particularly for the young.
Family structures are changing and family practitioners have perhaps not quite caught up. The decline of both marriage and divorce are both well publicised. Cohabitees and step families are the fastest growing family relationships in the UK. There are now more “reconstructed” families than the traditional “nuclear” families. And yet, the majority of family lawyers consider themselves “divorce” or “matrimonial” lawyers.
What clients want
Clients want solutions to their problems and to understand what they themselves need to do to achieve it and how long it will take. It’s up to us to present that to them in as simple a way as possible.
It is incumbent upon us to focus on using our legal knowledge to shape our practical advice to clients rather than our submissions to court. A DR approach to day-to-day practice will be the cornerstone of the development of family practice.
Clients want to be helped, guided and assisted, not lectured. Legal rules and precedents are important but to a large extent now and – we say – in the vast majority of cases in the very near future, practical considerations will be vastly more important than strictly legal ones. Clients on the whole are not interested that we could refer to Part 20 of the Family Procedure Rules 2010 when considering interim remedies in financial proceedings.
Clients will want access to services that suits their needs and busy schedules. This will mean the need to exploit technology to a far larger extent than we’re currently doing. Countless other industries are storming ahead in this respect.
The traditional approach of meeting a lawyer, offloading your problems and trusting them to get on with it, is on a steep decline, if not on the way out. Our clients are savvy and they want change.
Some will be seduced by the prospect of AI offerings. We need to stop believing that a computer could not replicate the analysis of family justice of which the human mind is capable. We should look at these prospects not as threats but opportunities to show prospective clients what we can offer, how we can do it and why it is preferable to choose us over robots. This does not require blue-sky thinking.
It is helpful to consider the various ways in which we access other services (banking, shopping, communications) – what elements of our services could be delivered in a more accessible way?
Websites offering “free” information and “online” divorces already exist. We as practitioners may know the limitations of these offerings but most clients won’t look at the small print to understand exactly what they are getting. What is plainly obvious is that clients are finding those services because clients want online, accessible and instant information to their queries and problems.
Deregulation of our industry is already afoot. There are already plenty of non-lawyer professionals offering solutions that we as family law professionals are not. Our industry is notoriously bad at change, and other services will figure out this gap and will fill it.
Of course there will always be some clients who seek the full service and full representation, but certainly there are increasingly others who want a bespoke, unbundled service which they can dip in and dip out of.
Fixed fees will become the norm for elements of our practice, because they have to. In what other aspect of our lives would we blindly sign up to a service without first assessing affordability?
We really should ask clients if there are aspects of their case which they want to do themselves. It is clear that if offered the choice, most would still most likely want our help anyway, but they would respect the fact that they have had the choice.
We have an opportunity here. It is not all doom and gloom. We just need to realise that change can be good and that we need to embrace it.
The training void
We recognise that many client needs can be met in traditional DR processes. The problem is that the ‘A’ has not been completely dropped from ‘ADR’. The structure of our training presents these processes as ‘alternatives’ by omission.
DR and other associated non-traditional processes and approaches are often seen as the domain of the more established generations. There is a concerning absence of training available (whether it be voluntary or compulsory) in the early stages of our careers to give us the skills we need to adapt our approach to the needs of our clients.
As students, our theoretical training focuses on black letter law, which is undeniably essential, but of limited assistance in developing the skills to practice in and ever changing ‘lawscape’. The Legal Practice Course focuses on litigious means of dealing with disputes. Trainees spend days shadowing senior colleagues and counsel in court proceedings.
At the inaugural YRes National Conference in September, delegates were asked to raise their hands if they had received specific training in ‘negotiation’ skills. No solicitors raised their hands. Only one or two barristers did.
We need to move away from the view that training in a certain DR discipline merely adds ‘a string to one’s bow’ and allows the addition of a new service to a business card. Instead this needs to be at the core of our practice. In order to fully promote and implement Resolution’s Code of Conduct, DR must be at the centre of our work. We believe that DR practice will (and must) pervade everything we do. DR training should be promoted as essential for all lawyers.
If we do not offer or at least discuss the spectrum of DR options, are we not doing our clients a disservice? Are we opening ourselves to disciplinary proceedings simply by not understanding or recognising the opportunity for clients to do things better, quicker and cheaper?
Considerations for generation YRes
Future-proofing our practices must start now. We need to take stock of who our future clients will be, and what they want from us. Our clients are all individuals with different personalities, priorities and needs. We can’t fit them to the rules of the Red Book. We need to listen, react and put in place options and alternative practices to keep up with changing times.
We have an obligation to provide our clients with the best possible service – explaining, offering or at least signposting the DR options is a vital part of this. But we need to understand and have insight into those processes to be able to do that properly.
We as Resolution members, and those of us already DR trained, need to take some responsibility for supporting these decisions. We need to ensure our family justice professionals of the future are fit for purpose in a brave new world, post-Brexit, post Family Justice reforms, post online courts.
At present, not enough YRes members are providing DR services. There are approximately 1,700 members of Resolution who are YRes (ie under 10 years’ PQE). Of those, only 130 with 10 years’ PQE or less are DR trained. That’s less than 8%. Just 18 of those trained are 5 years PQE or less. There is something very wrong with these figures.
We have not mentioned “arbitration”, “mediation” or “collaborative law” once. We see family law of the future as DR focused, but without the labels, rather having a variety of skills which we can use to fit a particular client’s family situation, to maximum effect.
Something doesn’t sit right here, however. We see DR as the future. We see YRes as the future. Yet less than 8% of YRes members are DR trained.
Wherever we practice, whether as a family lawyer or other family justice professional, we need the right skills to do the job, and to do it well. Some of us have those skills already, whether or not we use them with a formal label attached, but the majority that do have those skills have developed them through some sort of “curious osmosis”.
This is not the right way for our junior practitioners to learn and practice. For the vast majority, however, this is what happens. YRes practitioners don’t get the support and encouragement to train in DR. Instead, they have to learn on the job from what they see others doing, what they read, and through hypothetical examples.
We need to move on from this and invest in our future practitioners now. But to be able to move forward, we need your help and experience.
We would love for you to make one change in your practice that benefits your junior colleagues. That could be running a lunchtime workshop on DR skills, helping put together a business case to get them DR trained, working on a 5 year plan incorporating DR into their practice, shadowing you with one of your DR clients, offering help with Resolution training for the YRes generation.
There are clear and recognisable opportunities ahead for all of us. YRes is ready to take the plunge – are you ready to support us?
This article is based on the keynote speech given at this year’s DR Conference by Sarah Green (TLT Solicitors), Joanna Blakelock and Matthew Gosnell (KGW Family Law). The full speech can be viewed online at www.learn.resolution.org.uk