Divorce is riven with high emotion and often irrational behaviour. It is by its nature combative, but lawyers are increasingly arguing that it does not have to be that way. For years the Solicitors Family Law Association — as the lobbying group used to be known before marketing gurus rebranded it as Resolution — has pressed for a “constructive approach” to divorce. That meant that the lawyers on opposing sides would encourage their clients to play nicely with each other.
More recently, some specialists have gone farther. In February, a City firm launched a “separation model” that involves its lawyers acting for both parties. Its move followed the launch of the Divorce Surgery, a firm regulated by the Bar Standards Board that markets a service described as “one couple, one lawyer”.
That slogan immediately sounds alarm bells over conflicts of interest. If the divorce process can lead to one party tipping water over a lawyer’s head, how can a couple possibly share advisers? The City firm’s new model involves “a neutral facilitator/mediator” from the firm, who “guides the couple through the new process, but does not provide legal advice”. A separate set of the firm’s lawyers offers “legal input on distinct issues”, says the firm, emphasising that those lawyers work “within strictly defined roles”.
However, other specialists have their doubts. Partner Mark Harper commented:
“One lawyer meeting with a separating couple is fraught with significant risks of conflicts of interest”.
He warns that one party “may be being browbeaten into a so-called consensual approach. An experienced solicitor can guide a client through the different non-litigation options — counselling and therapy, mediation or arbitration — without risking a conflict of interest”.