Dr Rob Clucas R.Clucas@napier.ac.uk
Associate Professor
Abstract
Dispute resolution in family law is at a point of crisis. We have sensible and necessary substantive rules such as the Children Act 1989 in England and Wales, and the Children (Scotland) Act 1995, to regulate the operation and dissolution of family life. We have a large number of people trained in administering and interpreting these rules in in variety of fora – lawyers and judges – and additional dispute resolution provision in ADR. At the same time, the complexity of the substantive legal rules (and the procedures for navigating the formal system) require specialist legal services which are too expensive for the majority of citizens, and the expected uptake of mediation in England and Wales post the Legal Aid, Sentencing and Punishment of Offenders Act 2012 has not worked out as planned. The backstop of legal aid, introduced to assist those of limited means, has been very significantly restricted in England and Wales, and slightly less so in Scotland, where civil legal aid in family matters is still available for the very worst off. In practical terms, we have a system which is accessible to only the very wealthy, or (sometimes) the very poor. This is not news, and is a problem that afflicts many jurisdictions other than our own.
What, then, is the solution? Thus far, policymakers have tended to employ the strategy of reducing the cost to the public purse (legal aid cuts) and the tactic of promoting additional, cheaper, means of dispute resolution such as mediation. Mediation and collaborative dispute resolution have the additional laudable aim of minimizing conflict and preserving relationships, which ought to avoid the costs of adversarial legal proceedings. Other cost-saving ideas include online dispute resolution. Yet to date, these approaches do not seem to have satisfactorily replaced more widespread access to family lawyers.
I argue that a solution to the dispute resolution needs of our society requires a different approach. We should divert significant resources and attention to preventative dispute resolution, what I call ‘Dispute Resolution 3.0’, following Peter Attia’s Medicine 3.0’, at a fundamental and comprehensive level. Instead of primarily focusing on how best to resolve the disputes that have arisen, we need to think creatively and systemically about how to prevent disputes from arising, or at least reduce the numbers of those that do arise. In this paper, I outline an interdisciplinary project I am developing at Edinburgh Napier, that aims to understand and address what is needed for the preventative channeling of behaviour that can minimise the number and extent of disputes arising. This is also, as Llewellyn and Hoebel tell us, one of the essential law jobs that needs to be fulfilled for our groups – our society and our legal system(s) – to flourish and survive.
Citation
Clucas, R. (2024, September). Dispute Resolution 3.0. Paper presented at Family Dispute Resolution Symposium, University of Sunderland
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