Monthly Archives: July 2012

Upside Down on Mediation

The serendipity of twitter led me recently to a blog post entitled “Family Law: Mediation and Alternative Dispute Resolution – The Role of a Barrister“. Being a family barrister and mediator this seemed like something of a “must read”. It is written by a barrister from Brisbane, Australia where there are many similarities with our own legal system and indeed our family system. But apparently some pretty big differences between our approaches to mediation and our understanding of its benefits.

Ross Bowler, the author of the blogpost, in essence appears to suggest that a client directed away from litigation is a client who has been done a disservice, who has somehow forfeited an entitlement, who will be getting a bum deal. His post uses quite absolute terminology which, coming from a lawyer, one must assume to be deliberate:

Any attempt to compromise family law litigation prior to that complete preparation being undertaken, including a comprehensive advice from and conference with the barrister, must:
•    Necessarily deny the client the opportunity to be fully informed about their matter; and
•    Colour any compromise accordingly. [Bold my emphasis]

No ifs and buts there then.

So before we advise our clients that maybe they might want to think about ways of avoiding a court based bun fight we have to get them fully prepped and trial ready, and lighten their pockets before they do something daft like donate their “entitlement” to the other side? Uh….huh… Continue Reading…

Are you sure about this shared parenting malarky?

So Alan Beith, Chair of the Justice Select Committee and government advisor, has written to David Cameron asking him to reconsider government policy on shared parenting. The letter, sent last week to the PM, the Secretary of State for Justice, the Minister of State for Children and Families, and to the Parliamentary-Under Secretaries of State for Justice and Education, in essence asks the government to think again about its plans to implement a shared parenting provision, raising concerns with all of the four proposed legislative provisions set out in the current consultation.

I think that it is pretty significant that the Justice Select Committee has taken this action at a point where the Government has announced it plans to implement this policy in some shape or form and is now consulting on how best to go about it. It is a direct challenge to government policy and comes in the same week as the All Party Parliamentary Group on Child Protection launched its own enquiry into the proposed family justice reforms, including safety issues around shared parenting (see here also).

I have not forgotten that I have promised to set out my own views on shared parenting, and on a separate but related point, to respond to Stephen Twist’s own innovative proposals for restructuring private law disputes. It’s a question of prioritising other more pressing issues. It’s on the to do list…

Bat the Rat

It is the height of summer fete season, or would be if the summer were not such a washout. Bat the rat, for those who do not while away summer weekends in community activities befitting of Midsomer Murders, is a game involving a length of drain pipe angled at 45degrees from horizontal, a rat fashioned from an old sock with something heavy inside, and a weapon fashioned out of wood. The aim is to bat the rat as it exits the bottom of the drainpipe.

 

But that has nothing to do with this blogpost, since the rat in question is John Flood’s Random Academic Thoughts (RATs), (or one in particular), and I’m not intending to bat anyone – it just rhymed nicely. Yes, you’ve guessed it – the eponymous hero of this blogpost is a random non-academic thought.

 

In June John posted a blog ostensibly about the BBC series Silk, but in fact using the series as a vehicle to discuss the Cab Rank Rule:

Silk…Torn to Shreds!

John said this :

 

The Bar loves the cab rank rule. For them it underpins the rule of law. Most barristers’ clerks find it irrelevant. As one said, “I haven’t thought about it for 25 years until you mentioned it.”??Does it do anything? No one seems to know. There are no data to show how it works. Does it increase availability of counsel? Maybe where there are so few specialists in a field, eg, pension specialists.??These days everyone specializes so solicitors know who will do what case. Why send a prosecution case to a chambers that only does defence work? Informally who does what is known–formally, it isn’t. But then if you use direct access to instruct a barrister the cab rank rule doesn’t apply–another exclusion.??It’s one of those things that members know but outsiders don’t. And indeed it is less to do with the unpopular client because every lawyer wants those–they bring publicity. The main concern is now to do with the size of the fee.

 

Of course, as anyone who has seen Silk will tell you, you should never believe anything a clerk tells you. Clerks may well wish the cab rank rule were irrelevant but for those of us who practice by it is as relevant as ever.

Continue Reading…