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There is no doubt that these are testing times for family lawyers. From April 2013 access to legal advice in family cases was drastically limited. Many firms undertaking legal aid made plans to adapt their businesses to survive the changes; sadly some did not survive at all. But what of clients? Why would they prepare for the reduction in availability of legal aid? The simple answer is that they would not. Anecdotally there are reports of overwhelmed law centres and Citizens Advice Bureaux (who have also been affected by the cuts) and of queues of people seeking much needed advice. Despite press reports of ‘self interest’ by family lawyers, the reality is most are concerned that those in need of help may no longer have somewhere to go for advice. Turning away people in need goes against the grain. The launch of the Resolution scheme ‘Family Matters’ provides another option.
In July 2012 the Department of Work and Pensions (DWP) launched an innovation fund to provide funding to organisations looking to offer advice and information to separated parents in new ways. The purpose was to fund pilot schemes to support parental collaboration and encourage independent agreements without the need for statutory intervention or court proceedings. The overall aim was to reduce costs on the state and to minimise conflict for the benefit of the family and any children.
Resolution has always been active in dispute resolution and developments within family law and as such was ideally suited to develop a pilot scheme to support separated parents. Because of their expertise in this area, and the creativity of their approach, their bid to run the service Family Matters was successful and Resolution was awarded £650,000 to offer the scheme, which would be hosted within three law firms based in Newcastle, Oxford and Crewe. The service is provided free of charge to those who are eligible.
Conflict and conciliation
Resolution has long advocated that parental collaboration is the key to reducing conflict between separated parents and members are required to communicate in a non-confrontational way. Many family lawyers try to minimise conflict by encouraging clients to be more conciliatory by acknowledging the other parent’s view and putting the children first. However, DWP consultations suggested that the government favoured an approach that aimed to exclude lawyers from any future model which was implicit from the absence of any legal support-structure in recommendations. It was almost as if lawyers were seen as conducive to conflict and as such needed to be taken out of the process to allow parents to reach an amicable agreement. Resolution was keen to show that family lawyers are a valuable resource in dispute resolution and that it is important for parents to have quality legal information and support in order for them to properly consider options. It is positive that the government has now acknowledges the value of lawyers and mediators in support-services by funding the Family Matters project.
Fundamentals of Family Matters
The scheme builds on a mediation model, in that ‘guides’ offer impartial legal information and advice and are able to meet with both parents in order to manage discussions. However, the scheme goes further: the guides are also able to help parents who are not yet able to engage in that process or in a position to identify what issues need to be addressed. The DWP report: Collaborative parenting: barriers faced by separated fathers concluded that parents in challenging circumstances feel that there are a number of barriers that prevent them from engaging with services or the other parent and this may mean that mediation is not initially welcomed. Fathers in particular may feel disengaged where they perceive that they are excluded by family support services and may need more encouragement to access them.
There may also be other issues affecting the family such as housing, debt, disability, domestic violence or depression and those problems may not be apparent from either a MIAM or even a longer mediation session. In that situation (or where the conflict has resulted in the parents becoming disengaged) an interventionist approach may be more appropriate so that any factors preventing meaningful communication or access to services can be addressed. This approach is the fundamental basis of Family Matters and aims to offer support by looking at the ’bigger picture’ and help parents identify their needs and access local services. This also builds upon the networks already in place by law firms so that a joined-up and holistic approach can be taken with established community links.
How does it work?
The length of meetings will depend on the needs identified but are generally between one and two hours long. Some parents may only wish to have one meeting although more are possible and there is no limit to the support a parent is able to receive. There is no cost for the meetings so this is not a worry or financial burden on parents who need support and files can remain open for as long as parents require support.
A typical referral may arise from call from a firm of solicitors who explain they are unable to assist a father in a contact claim as he is not eligible for legal aid. The father says that he has not seen his young child for five months and needs advice completing the forms to issue at court. The mother is then contacted who says that the father is abusive and she will only allow him to see the child at a contact centre; she is upset that the father has a new girlfriend and that he has not paid any child maintenance for weeks. The father says that he has always paid maintenance but will not do so if the mother won’t allow him to spend time with his son. Neither will agree to mediation.
In the above case study, a Family Matters guide can speak to both parents about why they feel unable to attend mediation. It is not uncommon for parents to initially feel that mediation cannot take place but they may eventually be willing to consider shuttle-mediation or even a joint meeting. Arranging a first meeting for the father to spend time with the child at a childrens centre may make the mother feel that contact is being re-established in a careful and safe way and reassure the father that the mother is happy for him to be part of their child’s life. Maintenance is often treated as a separate issue, but for a lot of parents it is important that they feel the other person is ‘co-operating’. Often parents just need their anxieties and concerns to be acknowledged so that once that is done, they may feel more positive about mediation.
Continuing reciprocity relies upon both parents feeling that the situation is ’fair‘ and it is not uncommon to have to negotiate between the parents even before a meeting is possible to find out what reassurances are necessary to allow them to perceive the process as being impartial.
Gender differences, perceived imbalances of power and control are all relevant to the initial process and Family Matters is able to assist parents who are more hesitant about taking steps towards negotiation. This is where the service is distinct from others as the guide will have the time and experience to understand more about the family dynamic and find out why communication has broken down or what barriers are perceived that prevents.
Discussions can be supported and managed, but within a framework in which legal obligations are procedures are made clear and both parents are treated equally. The approach is therefore focussed on what is going on for the family rather than asking what it is each parent wants to achieve. That shift will hopefully allow both parents to ask the most important question of all: ’what does our child need from us?’
This question is at the heart of the Resolution approach – putting the needs of the child first – and demonstrates just why the organisation is best placed to deliver services like Family Matters.
See Resolution - Family Matters for further information and contact details.
Melanie Barnes is a consultant solicitor, mediator and Family Matters guide at Turpin & Miller LLP
0330 161 1234