Supporting Employees through Divorce & Separation

Pic of Event

Shadow Justice Minister Andy Slaughter MP addressing attendees at the Dialogue First reception

On 17th February professionals from human resources, occupational health, education and the voluntary sector gathered under the banner of Dialogue First at the House of Commons to discuss the impact of family breakdown on workplace wellbeing.

High on the agenda was new longitudinal data stating that at the onset of divorce/separation, between and a third and a half of impacted employees report mental distress levels high enough to be deemed at risk of depression.

With one exception panelists were drawn from entirely non-legal backgrounds. They included wellbeing leaders from Royal Mail, EAP provider Right Management Workplace Wellbeing, national children’s charity Place 2Be and the National Association of Head Teachers.

In the audience were representatives of major employers, EAP providers, the NHS and family wellbeing organisations. The aim of the evening was to demonstrate that a commitment to workplace wellbeing – and early stage intervention – could be leveraged to help support separating parents to communicate effectively when their children need it most.

There were some tough questions put the panel about employers being more proactive around personal matters but given the impact on mental health suffered by children and adults alike, there was consensus the issue should not be ignored.

This was especially true when chair of the panel – mental health campaigner and former Unilever HR executive Geoff McDonald – shared more longitudinal data stating that between 1996 and 2011 barely half of separating couples sought out legal advice and just one percent took themselves off to see a family mediator.

Worse still, the number of family mediations we know about across England and Wales has halved since April 2013, when policies put in place by the Ministry of Justice were supposed to see the number double. This is all the more depressing given that over three quarters of family mediations that got underway in 2013/14 ended in agreement.

The only family lawyer on the panel – Mike Devlin of Stephensons Solicitors – even stressed that supporting clients attending mediation could be lucrative for family lawyers. He added lawyers could even fix their fees for doing so and remove the anxiety of legal bills spiraling out of control.

This is precisely why we’re developing Lawyer-Supported Mediation. And it was a privilege to see the concept discussed outside of legal circles by professionals bringing an entirely new perspective to the challenge ahead.

*We are now putting together a community of major employers, EAPs, OH providers and trade unions, to offer Lawyer-Supported Mediation as part of a nationwide pilot that gets underway in April. For more information, please email: info@dialoguefirst.co.uk

Divorce & Separation: One in five men at risk of depression

Between a third and a half of adults experiencing divorce and separation report levels of mental distress high enough to warrant further attention by their GP, according to a groundbreaking new study.

This is the conclusion of research carried out by the Institute for Social and Economic Research (ISER) which compared levels of wellbeing before, during and post-separation. Such was the impact on mental health, the ISER discovered one in five men is at risk of depression at the onset of divorce and separation. This compared with one in eight women.

Entitled Partnership dissolution: how does it affect income and well-being, the research was based on longitudinal data from the British Household Panel Study.

Overall, the ISER says it takes up to two years for mental health to return to pre-separation levels. This reinforces previous academic studies but the degree to which employees are impacted at the time of divorce and separation was little understood.

The ISER findings will be of particular interest to Human Resources (HR) professionals and Employment Assistance Programme providers, responsible for the wellbeing of employees already performing at near full capacity in pressurised working environments. Recent surveys reinforce the ISER findings and make for sobering reading.

In September 2014, life and pensions company Friends Life surveyed 2000 adults to find “Relationships” was the third highest main cause of stress in the lives of respondents after work and money. And in late November, family justice organisation Resolution surveyed 4000 adults and found that 9% of employees either had to leave their jobs as a result of divorce or separation from a cohabiting relationship or knew a colleague who had done so. Prior to these findings being published, Secretary of State Iain Duncan Smith called upon employers to be better at identifying people struggling with ‘family break up’ so they do not end up leaving work.

Moreover, the incidence of family breakdown might be news to major employers. Census data from 2011 tells us that 50% of the adult population is married and 5% are cohabiting. This means over half a major employer’s workforce will be living with a partner. The Office for National Statistics says at least 42% of these relationships will fail with breakdown clustered around employees in their early 40s with dependent children.

Beyond the workplace, relationship breakdown is a truly societal issue with up to 250,000 parents separating each year. Conflict among separating families is hardly confined to the margins: in both 2012/13 and 2013/14 over 100,000 parents appeared at court to contest child arrangements. Since the withdrawal of legal aid from lawyers for most family disputes, more parents now appear at court without a lawyer than with one.

Given the frequency and profound impact on mental health, HR staples of signposting to family mediation or brokering discounted legal fees, may not be sufficient to manage workplace risk.

In mid-2014, research published by the Economic and Social Research Council (ESRC) revealed less than 1% of couples divorcing or separating between 1996 and 2011 went directly to family mediation. There were only around 800 mediations a year in 2000 – a full 20-years after family mediation first arrived in the UK. This comes at a huge opportunity cost to achieving speedy resolution – and accelerating the recovery of wellbeing levels – since family mediation is relatively quick and extremely successful once underway. Almost 80% of separating couples that began mediation in 2013/14 went on to reach agreement.

Evidence about family mediation gathered from longitudinal and randomised control trials – the gold standard in research – has also shown that contact with the non-resident parent (usually fathers) was higher among those that attended mediation than those who went to court. These studies suggest that the mediation process can promote parental co-operation, educate parents about their emotions and encourage parents to develop effective and appropriate boundaries around an ongoing co-parenting relationship.

But as the ESRC research makes clear, family mediation in its unsupported form (that is to say without advising lawyers fronting up and supporting the process) fails to meet the perceived needs of separating partners in conflict. A family mediator is only able to encourage dialogue, build trust and achieve consensus because he or she remains neutral and does not impart advice. While integral for disrupting the underlying causes of conflict, this does not speak to the impulse amongst separating partners to have “someone in their corner” to constrain the behaviour of the other party.

This someone usually comes in the guise of a divorce solicitor who isn’t – shall we say – predisposed to sharing each new client with a mediator. Individual solicitors tend to monetise individual clients rather than individual couples. Such behaviour has both constrained the growth of family mediation and fostered huge reticence around accessing legal advice dispensed at north of £200 per hour plus Vat.

By way of example, YouGov’s 2014 Family Law Divorce Survey showed clients paid a widespread range of fees from less than £500 to over £20,000. In fact, the same percentage of respondents paid up to £1499, £2999, £3999 and over £10,000. Such was the degree of price uncertainty that almost 60% of those surveyed said their costs were higher than expected.

It is perhaps not surprising therefore that the ESRC research discovered almost half (47%) of divorcing and separating couples did not seek legal advice about their situation between 1996 and 2011. While it is true many separating couples part on amicable terms, tens of thousands of separating partners run the risk of being mired in conflict as a result of power imbalance and lack of advice.

As Robert E. Emery – the professor of psychology who led the randomised trials mentioned above – recently noted in the New York Times: “Your emotional impulse in divorce is to hurt back, because you hurt so badly. Our legal system should work against that impulse, not encourage it. That, truly, is in the best interest of the child”.

Combined with the profoundly negative impacts upon mental heath, those outside family law services might well consider it perverse that solicitors and mediators have continually failed to align and develop services built around informed dialogue and early stage resolution.

Until this sorry trend is reversed, impacted employees will remain little more than one-time shoppers making a distressed purchase when it comes to family law services. And that’s if they turn to the hired help at all. Either way – as the new findings lay bare – this poses significant risk to both employee and employer alike.

*Marc Lopatin is a trained family mediator and director of social enterprise Advantage Resolution which developed Lawyer-Supported Mediation. The approach will be made available to a community of major employers and trade unions from April 2015 on a pilot basis. For more information, please contact Advantage Resolution at info@laywersupportedmediation.com

News Release: Over 60% of parents at court without a lawyer

EMBARGOED UNTIL 00:01 MONDAY, 13TH OCTOBER

Over sixty percent of parents are now without a lawyer when going to court to contest arrangements for their children, new government figures reveal.

Between April and June 2014, 12,554 parents out of a total of 20,126 in England and Wales went to court without a lawyer to decide issues such as child contact, residency and maintenance payments.

Prior to legal aid being withdrawn from lawyers for most family disputes, the proportion of unrepresented parents at court for the same matters stood at 42% in 2012/13. The latest quarterly figures for 2014/15 show this has increased to 62%.

The Ministry of Justice figures were revealed under the Freedom of Information Act following a request by Marc Lopatin, trained family mediator and founder of divorce and separation service Lawyer Supported Mediation.

Commenting on the statistics, Marc Lopatin said: “Family courts are rapidly becoming lawyer-free zones. This is having a devastating impact on low-income families as well as creating delays for all parents attending court.

“Ministers should admit they got it wrong. They need to stop seeing lawyers and mediators as an either or. Both professionals working in tandem can keep families out of court and promote the interests of the child.”

The Ministry of Justice figures also showed that the number of unrepresented parties at court contesting financial matters had risen to over 30% for first time. Out of a total of 17,550 people at court to resolve how property and pensions should be split, 5,410 parties were now without a lawyer.

Faced with the prospect of being unrepresented, many parents are simply turning their back on the family justice system. In late September, the Ministry of Justice released official figures showing number cases featuring ex-partners going to court over child arrangements or finances fell to 9,291 between April and June 2014. This is a drop of 40% compared to the same period in 2013.

It is highly unlikely that many of these parents are opting for family mediation over going to court. The same Ministry of Justice figures showed that the number of publicly funded mediations getting underway between April and June 2014 had fallen by over 50%, compared to the same period in 2012 when legal aid was still in place for referring solicitors.

In August, the Law Society warned that falling numbers of parents going to court would lead to children being denied access to their parents which seriously undermines the concept of shared parenting being introduced by the government.*

In addition, Resolution – an association of several thousand family lawyers – recently polled its members to reveal that reforms to the family courts were causing significant delays for both financial and children cases.**

ENDS/

Notes for editors:
For more information contact Marc Lopatin on 033 0223 1188

News Release: Legal aid casework plummets in second year of LASPO

Publicly funded private family law cases fell by 83% between April and June 2014, according to new government figures.

Analysis of quarterly data published by Legal Aid Agency (LAA) by divorce and separation service Lawyer Supported Mediation will be a wake up call for the 1200 law firms offering publicly funded family law services.

Lawyer-Supported Mediation looked at data for the main categories of private family law casework being targeted by The Legal Aid, Sentencing and Punishment of Offenders Act (LASPO). These were: Private law Children Act proceedings, Financial provision and Other family proceedings.

In first quarter of 2014/15 (April to June), the combined number of completed certificates for the aforementioned private family law categories, stood at 10,227. In sharp contrast, the number of certificates granted for the same period stood at 2366.

Lawyer-Supported Mediation points out that the ratio between the two totals underlines how LASPO will decimate casework levels in the years ahead. Total certificates granted for April to June 2014 amounted to just a quarter of number of corresponding cases completed in the same period.

The analysis also looked at the same quarter of 2012/13, the last full financial year before LASPO was enacted. In this period, the corresponding number of certificates logged as completed by the LAA stood at 14,168 while the number of certificates granted stood at 13,687. The difference between the two totals was a mere 3.3%.

More importantly, the year-on-year quarterly comparison shows the number of certificates granted by the LAA fell from 13,687 to 2366, a drop of 83%.

Marc Lopatin, trained mediator and founder of Lawyer Supported Mediation, said: “The plummeting number of certificates being awarded shows LASPO in motion. Law firms overly dependent on legal aid revenues will need to find ways of earning more private fees. They will have to attract new clientele by offering services that private law firms will not. This is all about offering price certainty and affordability while balancing risk and return.”

Lawyer-Supported Mediation warned that many law firms might still not be alive to the forthcoming drop in revenues. Costs met by the LAA for the aforementioned private family law services only dropped by 9% between April and June 2014, compared to the same period in 2013. This is because on average publicly funded private family cases take 84 weeks from the granting of a certificate to final payment.

Elsewhere, quarterly data released by the Ministry of Justice revealed that the number cases featuring ex-partners going to court over child arrangements or finances fell to 9,291 between April and June 2014. This is a drop of 40% compared to the same period in 2013. Meanwhile, the number of publicly funded mediations that got underway between April and June 2014 fell by over 50%, compared to the same period in 2012, when legal aid was still in place for referring solicitors.

News release: Mediation falls by 50% compared to pre-LASPO era

Low-income parents continue to bear the brunt of legal aid cuts to family law services, following the release of the latest figures by the Ministry of Justice.

In its quarterly release of court statistics, the Ministry of Justice (MoJ) revealed that the number cases featuring ex-partners going to court over child arrangements or finances fell to 9,291 between April and June 2014. This is a drop of 40% compared to the same period in 2013.

While fewer parents going to court might seem a cause for celebration, the major drop in litigation is a direct consequence of public funding being removed from legal aid family solicitors and barristers in April 2013.

The Law Society and groups representing family lawyers have previously warned this is a worrying precedent as parents could take the law into their own hands over child arrangements or be agreeing lopsided kitchen table deals over finances where one partner risks being sold short.

Moreover, the drop in court cases is not being mirrored by a rise in the number of people attending family mediation. Analysis of Legal Aid Agency data – also published today – by Lawyer-Supported Mediation, a group that combines fixed fee legal advice with family mediation, showed that the 1778 publicly funded mediations that got underway between April and June this year represented a fall over 50%, compared to the same period in 2012 when legal aid was still in place for referring solicitors.

Marc Lopatin, trained mediator and founder of Lawyer-Supported Mediation, said: “Low-income families are falling off the radar in their droves. It is absolutely wrong for Ministers at the MoJ to assume these parents are happily sorting out matters for themselves. Family law services have always been out of reach for the many and cuts to legal aid are taking this to a new level.

“If the MoJ wants to divert people from the courts to mediation, they urgently need to incentivise legal aid lawyers to support the process. This is an astonishing failure of policy given not one lawyer in the UK claimed funds from the MoJ to provide freely available legal advice in support of mediation.”

Ends/

For more information:
Contact Marc Lopatin, Founder Lawyer Supported Mediation on 033 0223 1188

News Release: UK Barristers make LSM debut

EMBARGOED UNTIL 00:01 WEDNESDAY, 24TH SEPTEMBER  

A team of family law barristers will today overturn centuries of legal tradition by being first to offer the public a fixed fee divorce service designed to keep their clients OUT OF COURT.

The team of barristers from Middlesbrough are dispensing with the wig and gown to help warring couples reach out of court settlements over child arrangements and family finances.

The decision to encroach on the traditional turf of high street solicitors is the unintended consequence of the government’s swingeing cuts to the family justice system. Following the withdrawal of legal aid for most family law matters, solicitors are instructing fewer and fewer barristers to represent publicly funded clients at court. As well as being responsible for the ballooning number of parents now representing themselves at court, it is threatening barristers with financial ruin.

In July, the Bar Council warned that legal aid family barristers were forcing many to question their futures following an online poll of its members. Over two-thirds of impacted family barristers reported a drop in fee income while ‘many respondents’ questioned the ‘viability’ of a career at the bar and were ‘actively considering’ whether they have a long-term future following the cuts.

This should not surprise. In the first year of cuts to legal aid, family law barristers across the UK saw their legal aid income targeted by government plummet from £38 million to £15 million. Impacted barristers are therefore staring to take advantage of recent changes to Direct Access regulation that effectively allows them to offer the same services as high street family solicitors.

The group of barristers from Middlesbrough have formed their own collective called Divorce Puzzle to market themselves directly to the public at reduced rates to solicitors.

Collette Price, a family barrister with over 15 years experience and co-founder of Divorce Puzzle, said: “It might seem bizarre for barristers to start marketing themselves as legal advisers to keep clients out of court but the truth is we can use this knowledge to save separating partners a huge amount of money by helping them reach agreement between themselves.

“We can do this at a lower cost than solicitors because our overheads are less. Barristers are also entirely comfortable with fixed fee options while solicitors are still working out ways to move away from hourly rate services,” added Price.

Divorce Puzzle will offer a new approach for resolving family disputes called Lawyer-Supported Mediation that is presently being piloted by a small network of solicitors in London and the north of England. The service fuses fixed fee legal advice with family mediation and aims to resolve family disputes by encouraging effective communication when the impulse among separating partners is to fight.

“Data from government shows eight of 10 people that begin mediation go on to reach agreement. By providing affordable fixed fee advice in parallel, we hope to encourage more separating couples to explore mediation,” said Price.

Marc Lopatin, trained mediator and founder of social enterprise Advantage Resolution, which developed and administers Lawyer-Supported Mediation, said: “If we’re going to put the interests of children first and keep more parents out of the courtroom, we urgently need to put effective communication at the core of family law services. We’re already working with a committed network of solicitors to deliver this and it’s extremely encouraging that barristers are starting to think along similar lines.”

Divorce Puzzle will be marketing Lawyer-Supported Mediation across North Yorkshire and parts of the northeast.

/ENDs

For more information:
Marc Lopatin (Director, Advantage Resolution): 033 0223 1188

Also see: http://www.DivorcePuzzle.co.uk

Background stories for editors:
http://www.lawgazette.co.uk/law/publicly-funded-bar-facing-post-laspo-exodus/5042215.article

http://www.bbc.co.uk/news/uk-28329278

http://www.lawgazette.co.uk/law/fees-plummet-as-aid-cuts-starts-to-bite/5042508.article

Office of National Statistics (2012): 118,140 divorces in 2012. 42% of marriages ended in divorce. 40 and 44 years of age was the most common age at divorce. More: http://bit.ly/1n4UV4z

News release: Family lawyers face £100m legal aid shortfall

Over 1200 high street law firms offering legal aid family services could face a £100 million shortfall in fees as publicly funded cases work their way through the family justice system without replacement.

The estimate was reached by divorce & separation service LawyerSupportedMediation.com (LSM) which analysed recently published Legal Aid Agency (LAA) data to calculate that the Ministry of Justice is on course to reduce its spend on solicitors’ fees by over £100m compared to 2012/13.

Shared across the 1208 law firms with a government contract for providing family law services, this represents a £90,000 black hole that will need to be filled by a corresponding increase in private fees to stave off redundancies and maintain lawyer numbers.

Marc Lopatin, trained mediator and founder of LawyerSupportedMediation.com, said: “This is actually an opportunity for impacted solicitors to innovate and bring down the cost of family law services. Research already shows that nearly half of the 250,000 plus people who separate each year don’t consult lawyers for advice. Hourly rates of more than £200 per hour put thousands off and divorce solicitors will need to find new ways of their fixing fees for a meaningful service if they’re going to attract new business and survive in their current numbers.”

Analysis revealed high street family solicitors have thus far shielded themselves from the cuts. When income from proceedings not being targeted by government is stripped out (ie care proceedings and domestic violence), the LAA paid family solicitors £132 million in 2013/14 compared to £143 million in 2012/13. This represents a year-on-year saving of just 7%.

But while the analysis showed solicitors were benefiting from “a post-LASPO lag”, family barristers were none so fortunate. Payments made to barristers by the LAA for impacted family law proceedings fell from £38 million in 2012/13 to £15 million in 2013/14. This is a drop of 61% and echoes the Bar Council’s recent warning of an exodus of its members after surveying them about falling caseload.

To calculate how much the LAA will save in 2014/15, LSM looked at the number of certificates for civil representation being granted by the LAA to family solicitors in 2013/14. The first half of the year showed a spike in the number of certificates granted as family solicitors rushed through legal aid casework before the April 1st funding deadline.

However, the second half of the year (October 2013 to March 2014) showed the true level of legal aid work now available as the number of certificates plummeted by 84% for disputes relating to child contact, residence and finance cases. Using this data, LSM estimated that the LAA would save £109 million on solicitors fees compared to 2012/13 – the last full year before the cuts were introduced.

LSM also predicted family barristers would also continue to suffer a fall in legal aid income as referrals from solicitors virtually dried up for impacted family proceedings. As a result, LSM estimated that barristers were likely to see income fall from £38 million in 2012/13 to £6 million in 2014/15.

LSM, which offers fixed legal advice in support of family mediation to bring down the cost of contested divorce, highlighted the shifting dynamic between solicitor and barrister as a source of muted friction that could yet go public should more family barristers start using a direct access scheme aimed at cutting out solicitors.

“How impacted barristers respond will go some way to defining how family law services will evolve. To survive, barristers may have little choice but to start competing with solicitors for divorcing clients. If they do, this will break the historic referral bond between the two professions and create the colourful spectacle of fixed fee barristers being hired by clients with the express purpose of keeping them both out of court,” added Marc Lopatin.

/ENDS