LiPs do it for longer – should we believe the bumper sticker?

After the recent Panorama documentary "DIY Justice" people started tweeting under the hashtag #diyjustice that "Litigant in person cases take 50% longer than those with legal professionals involved", and other variations on the theme that litigants in person are "clogging up the courts". Screen Shot 2015-04-05 at 22.11.50As is the way with twitter, people soon started questioning the evidence upon which this assertion was based. In fact it was drawn directly from remarks made in the programme by Sir Alan Moses, retired Court of Appeal judge (and latterly chair of IPSO) to that effect, based, it appears, upon his own first hand judicial experience.

Now, whilst anecdote from a recently retired Court of Appeal Judge about what goes on in our courts is probably at the more reliable end of the spectrum of anecdotal evidence, it would be more satisfactory if we could back up that anecdote with statistics. In fact though, such statistics as we have are not entirely helpful or clear.

Before we look at the evidence base though, it is worth defining our parameters. We need to be clear that there are a number of ways in which litigants in person (or any other category of litigant) might adversely impact upon efficiency:

  • they might tend to have longer overall case durations than other categories of litigant
  • they might tend to require hearings which take longer than other categories of litigant
  • they might tend to bring more cases to court than other categories of people in dispute (including by failing to be diverted to NCDR or by bringing serial applications)
  • they might tend to generate more judicial / HMCTS work in terms of counter staff time, complaints, and ancillary judicial and administrative work (reading and preparation time, dealing with correspondence etc - see here for an explanation of that)

For my part, my sense is that there might be a cohort of LiPs whose cases appear to be more straightforward, and who skip off into the sunset with relative ease after an FHDRA. And there are some who struggle through to the point of CAFCASS recommendations or the final hearing shortly after, and emerge bruised and battered and just glad it is over, wondering how the experience has helped their family at all. But there is a rump of LiPs whose cases are not "cracked" so easily as that, and which take up a disproportionate amount of judicial and court time and resource. That phenomenon is not unique to cases involving LiPs - we could equally observe this fork in the road in lawyer run cases - but I suspect that the result in terms of court efficiency is more pronounced in LiP cases, and the outcomes less reliably robust. It might be therefore that the average duration of LiP cases may not be a particularly informative statistic, as it may be capable of distortion by one or two cases.

So, what evidence do we have to support Sir Alan Moses' own view?

The judicial view that LiPs take longer has been around for a while, and is pretty widespread (and is shared by many lawyers). That doesn't make it necessarily accurate, and there are many reasons why anecdote alone is not enough - but it is nonetheless important to heed the shared experience of those who are "on the frontline", whilst seeking other evidence to corroborate or challenge that view.

A 2011 report by the Civil Justice Council (which includes several judges) entitled, Access to Justice for Litigants in Person, said:

The general consensus from judges was that hearings increase in length by at least 25% with self-represented litigants; 50% for complex cases.

The idea that cases with LIPs take longer is fairly widespread in the research, both before and after LASPO. Back in 2002, Nic Madge, a circuit judge and an editor of the White Book, when discussing litigants in person on his blog, observed (quoting Judicial Studies Board Journal, 2002, Issue 15)

When judges talk among themselves about civil cases, it is not unusual to hear of difficulties in cases with litigants in person. It is indeed easy for judges and court administrators to regard litigants in person as a problem. They may not know the procedure. They may not prepare documents in the same way as lawyers. They may make points which, to lay-people, appear “right”, but which have no foundation in law. Cases involving litigants in person seem to take longer. (emphasis added)

In 2005 a study conducted by Professor Richard Moorhead for the Department of Constitutional Affairs, entitled Litigants in person: Unrepresented litigants in first instance proceedings, noted that

This suggests that non-representation in family cases, other than divorce, is generally associated with cases taking longer.

The Judicial Working Group on LiPs July 2013 report (just post-implementation of LASPO) predicted that

There is also likely to be a significant rise in the need for (and the length of) preliminary hearings to deal with issues that have to be resolved before substantive hearings can take place.

and concluded that it was "inevitable" that cases were going to take more time. They set out cogently the sorts of difficulties that the judiciary and court system might encounter, based upon past and current experience.

More recently, in November 2014 we had two pieces of research. We had the Government's Ad Hoc Statistical Release : Experimental statistics: analysis of estimated hearing duration in Private Law cases, England and Wales, which I wrote about in a blog post entitled The Big Experiment (in short, whilst this generated some relatively robust headlines these statistics didn't really tell us much of use regarding how long individual hearings ACTUALLY take - see also Professor Richard Moorhead on the Lawyer Watch blog on this topic : Litigants in person, never mind the quality – it’s length that counts). In the same post I also touched upon the more substantive piece of news that week, which was the publication of the long awaited The Litigants in person in private family law cases research study (Trinder et al). The Trinder research reminds us that :

Despite judicial and policy interest, however, the research base on LIPs is modest.

Government-funded work includes Moorhead and Sefton’s (2005) research on family and civil courts and the Ministry of Justice’s relatively recent literature review (Williams, 2011). The MoJ review suggested: that there are “a number of gaps in our understanding of this issue”; that “unrepresented litigants in family and civil cases were common” but often “inactive, particularly in civil cases” (less so in family cases); and that LIPs might face problems “understanding evidential requirements, identifying legally relevant facts and dealing with forms” and coping with oral procedures (Williams, 2011:1). Court staff, the judiciary and lawyers “felt compensating for these difficulties created extra work and possibly presented ethical challenges” (2011:1). The MoJ review suggested evidence on case duration was mixed (partly because cases where LIPs did not participate tended to end quickly). Similarly, “the evidence indicated that lack of representation negatively affected case outcomes, although few of the studies reviewed controlled fully for case complexity” (2011:1). Internationally, Macfarlane’s large, interview-based study in Canada, for example, emphasised problems caused by complex court processes and court guides, confusing online resources which did not meet LIP needs, and “negative experiences with judges” (Macfarlane, 2013:13).

They observe that in their sample

many LIP cases appeared to proceed relatively smoothly, at least in terms of the limited number of quantitative indicators of case duration, hearing length, adjournments and method of reaching disposal.

They also stated that

A frequently expressed concern about litigants in person is that as well as experiencing difficulties with court proceedings, they create difficulties for the court system by means of unmeritorious applications, non-appearances and various forms of disruptive behaviour. This section examines these concerns and finds them occurring relatively infrequently in the sample. Non-appearances were the biggest issue, but these as well as other problems could often be explained by the procedural challenges and vulnerabilities that litigants in person faced.

They go on to explain that no-shows by a LiP were at 25% in the sample observed, and this was felt to be an underestimate of the general no-show rate due to the study methodology. (It's beyond this post to deal with the vexed question of whether or not the outcomes of a justice system involving fewer lawyers and more highly pressurised LiPs is producing robust, safe and durable "good" outcomes for children and families if people feel unable to participate at all or to articulate their concerns and rationale - but it is a matter of great anxiety to many working in the family justice system (and indeed to those who have gone through it themselves).)

The researchers highlight a feature of their sample group :

The notable point here is that all of the serial applicants were male, and in five of the cases the respondent mother/wife was in person. This, then, is another form of vulnerability experienced by women LIPs – that they may face a series of harassing applications by their ex-partner, which brings them back to court repeatedly and exhausts their funds (hence their LIP status), and, as illustrated in A026 in particular, as LIPs they do not know how to ask the court for an order restraining further applications.

It is important to recognise that, valuable as this research is, the sample size was limited (151 cases involving 165 LiPs) and as such they did not observe various phenomena reported to them from the direct experience of court staff / judiciary, and the sample may in some respects be unrepresentative - partly due to sample size and partly due to case / hearing selection methodology. For example, court staff had reported the (well known) phenomenon of LiPs producing inordinately long statements and insisting on reading them out in full. I have experienced this personally, but it did not come up in the cases observed. This doesn't mean it doesn't happen, but illustrates the limitations of even quite a substantial piece of research.

It is clear from the study that cases involving lawyers, and cases without might involve complexity and high conflict and might become protracted. They identified certain subsets of LiP who had particular difficulty and who appear to be the sorts of LiPs that the judiciary are telling us about (and who are the most memorable for those of us who have encountered them). So, hearings involving “over-confident LIPs” were

Highly inefficient. Hearings typically (greatly) exceeded time estimates. Cases typically proceeded to a contested hearing. Enormously costly for any represented party and for the court system as a whole.

While those involving “out of their depth LIPs” generally required

Longer or additional hearings … as LIPs were unable to understand what they needed to do either preparing for or during hearings [and] were unable to present their case effectively.

The important thing to take from the study is that

Only a small minority of LIPs were able to represent themselves competently in all aspects of their family law proceedings. Even those with high levels of education or professional experience struggled with aspects of the legal process. The great majority of LIPs were procedurally (and, where relevant, legally) challenged in some way, with some having no real capacity to advocate for their own or their children’s interests. A wide range of personal vulnerabilities were identified with around half of those observed experiencing one or more vulnerabilities which often added to their difficulties in self-representation and in some cases defeated their attempts to do so. A significant number were also trying to handle quite complex cases.

and

LIP cases appear less likely to settle and may require longer hearings and more hearings. A larger quantitative dataset is needed to test this finding conclusively.

The National Audit Office appear to be happy to operate on an assumption that LiP cases take "50% longer", see their evidence to the The UK's compliance with the UN Convention on the Rights of the Child - Human Rights Joint Committee, and see their report on the topic of Implementing Reforms to Civil Legal Aid, in which they were critical of the Government for not factoring in the additional cost burden of cutting legal aid in estimating the economies. From that report however, it appears the NAO assumption is drawn from judicial opinion - taken from the Judicial Executive Board submissions to the Justice Committee's review of the impact of LASPO, where it was said that

The Judiciary’s perception is that cases which may never have been brought or been compromised at an early stage are now often fully contested requiring significantly more judicial involvement and causing consequential delays across the civil, family and tribunals justice systems. Figures indicate that take up of mediation and ADR services have reduced meaning more cases are dealt with by the courts and tribunals.

and

 In the family courts the judicial perception is that private law appointments where both sides are unrepresented typically take in the region of 50% longer, so the courts are less able than hitherto to deal with the same volume of work and by an appreciable margin.

 Time estimates for LiP cases are notoriously unreliable rendering back to back listing (the key to achieving timely performance) impossible.

Those few lines then, appear to be the source of the 50% statistic (not that last point about unreliable time estimates when considering the ad hoc statistical release from November 2014 mentioned above).

This is not an exhaustive exposition of all judicial comment upon the question of litigants in person. There have been numerous remarks, interviews (and even Court of Appeal judgments) since LASPO in which judicial angst surrounding the topic of LiPs has been voiced. But it is apparent that whilst there is broad consensus amongst judges, there is some apparent tension between those views and the quarterly court statistics, which show case duration.

However, the only available figures on case duration are the average figures - the raw data from which the averages are drawn is not. These releases generally show a trend of cases with two lawyers and a represented respondent only taking longest, with cases involving a represented applicant taking the shortest amount of time on average (11.8 compared to 15 weeks for private law cases with no lawyers in the most recent release for Oct-Dec 14 here). So those statistics alone are pretty impossible to interpret in isolation. We can see that the mean and median figures shown on the statistical tables are quite discrepant in places - I would like to see the breakdown of individual cases that make up those averages.

The archetypal Litigant in Person - the vexatious or very very difficult one - looms large in the psyche of our judges and lawyers. It is possible that cold hard statistics will show us to have remembered these determined and defiant characters as more commonplace than in fact they are because they occupy such a space in our collective imaginations - the lawyers bogeyman if you will (although I think it is pretty clear that the troublesome LiP is neither a collective hallucination or completely apocryphal). We know that the LiP of today is not necessarily cut from the same cloth as the old "elective" LiPs. Today most LiPs are in person through force of circumstance. Perhaps this means they are less likely to be intentionally troublesome, but it may also mean they are more likely to include those who are just not equipped with the necessary skills or confidence to do themselves justice. The truth is that the 2014 Trinder research highlights the complexity of the issue - and although the research does not currently allow us to be definitive about it, it is pretty well apparent that there are large numbers of LiPS really struggling to access justice and that judges are going to have to work harder and longer to make that happen. 50% may be a guesstimate but its as good a guesstimate as any (it certainly matches with my own experience), and I don't see the MoJ commissioning any research to debunk it any time soon.

[Post script : thanks to Judi for pointing out the Justice Committee report : Impact of changes to civil legal aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which has lots of useful material within it, including commentary from the President of the Family Division and Lord Dyson, all consistent with the thrust of the above. And a cameo appearance from one Lucy Reid [sic], solicitor [sic] ;-/]

Thanks to the Transparency Project (@seethrujustice), in particular Paul Magrath (@maggotlaw), with pointers for this post.

13 thoughts on “LiPs do it for longer – should we believe the bumper sticker?

  1. Nick Langford

    Interesting, if inconclusive. It is not only whether or not litigants are represented, however, which influences the duration of a case. Can I quote (at some length) from what Munby himself said in 2005? To some extent Munby’s concerns have been addressed by the stricter controls on evidence and by the limitation to the size of bundles – it would be interesting to see what would happen if you reduced bundles further – as he suggests – to 5 or 10 pages. 😉

    “The court process at present tends to exacerbate matters and tends to make matters, which are already difficult and potentially adversarial, even more adversarial and it does so in two ways. First of all, the mere fact of delay means that people become more and more entrenched and the longer proceedings go on, the more entrenched attitudes become and the higher the stakes get. The other aspect, which is fundamental, is that the court process involves people putting out their case on paper. Now, the moment at which the father starts setting out his case on paper, complaining about the mother in relation to contact, then, human nature being what it is, the allegations are going to be put in their highest form. They are then met and the other party puts in a statement which meets all of those allegations and, human nature being what it is, tends to put the best possible spin on that and then meets those allegations and there is another raft of cross-allegations. The moment that process starts, the moment you get in the court context to the case being reduced to paper, of its very nature, matters tend to become more adversarial and if you then exacerbate that by delay, the matter gets worse and worse and worse because one of the inevitable products of delay is that you have to update the evidence, and updating the evidence simply means taking a rather weary, if not cynical, view of it. You are giving the parties another opportunity to return to the fray and make matters worse. In a funny sort of way, and this is counterintuitive, I find it is often easier dealing with cases if the parties are appearing as litigants in person because what you are actually getting is the facts of the case as they see it without the assistance, and some people might put that word in inverted commas, of lawyers. My view, I have to say, and on the first part of this I do not think I say anything different from Dame Elizabeth or Sir Nicholas, is that we want, if at all possible, to get these cases out of the court system altogether. Mediation is obviously infinitely preferable to the court process, but in relation to that irreducible number of cases which have got to go through the court process, I think we need to take a much more rigorous view both in relation to delay which generates difficulty, but also in relation to the actual process itself.”

    • No Nick, you are right it is not just representation that makes a difference to case duration. The concern is where a lack of representation makes a case longer than it might otherwise need to be. I acknowledge and accept what Munby P said in your quote – and I agree that bundles are often morbidly obese to noone’s advantage – but I have also been involved in cases where litigants in person have simply failed to serve, bring, rely on or refer to highly relevant documents – because they don’t have lawyers. That really worries me. It won’t make cases longer but it might mean the court reaches a different conclusion than it might have done.

  2. Is this the answer :
    Californian model
    135. The President of the Family Division drew our attention to the process adopted by the
    Californian courts to deal with litigants in person:
    The state runs a system which applies, as I understand it, in both family cases and civil
    cases, such as debt and landlord and tenant, where public money is focused not on
    representing individual litigants but on providing support and advice to litigants as a
    class. The model is very interesting. Each Californian courthouse has facilities on site
    where litigants in person are assisted to fill in the forms correctly, so that when they
    go to the counter the form is quickly filled in. They run training seminars so that you
    can go along to an LIP class and there will be somebody there to explain to you how
    the system works.
    Sir James told us that “they found that the cost of that to the public purse is much less than
    the cost of providing lawyers to individual litigants” and that the Californian judiciary has
    found the system works well

    http://www.publications.parliament.uk/pa/cm201415/cmselect/cmjust/311/311.pdf

    I am not sure if this means that all lawyers apart from those giving advice to LIP’s are redundant! Or if you can still afford someone to represent you , it is allowed, which would tip the scales of fairness again.

    I think you gave evidence to this committee ,though you are labelled as a solicitor.

    • Thanks Judi,
      It might be an answer if there were any way of making it happen. But the truth is this has been much talked about but there is little detail of how it might map onto our system, or indeed of how it would impact on the viability of a pool of competent litigators and advocates to deal with those cases that involved the sort of complexity that could not be dealt with through the state system.
      And yes, I did submit a written response to this committee – I confess that the publication of the report had passed me by until now and I did not know I was quoted. And not only did they call me a solicitor, they spelt my name wrong too!!
      But thanks for highlighting it – it is a really interesting read and I wish I had it to hand when I wrote this post. I’ve added it as a post script….

  3. Nick Langford

    Case length, like the overall number of cases, is also a very poor measure of anything but itself. An unrepresented case might take longer because the litigants don’t know what they are doing, or else because the court is taking greater care. Some cases, arguably, should take longer than they do. A fall in the number of cases, which we are also seeing, might mean more people are resolving disputes out of court, or that these disputes are not being resolved at all. The data we have is very poor, and sometimes contradictory, and almost none of it tells us anything at all about the quality of outcomes.

  4. russell armstrong

    Call me naïve, call me over simplistic, but can we not simplify the process in the first place?
    What I am about to describe would work in most cases and be so simple that everybody will benefit.
    We need to recognise the psychology involved, I will deal with one scenario (with the caveat that the roles could be reversed) that of a mother (parent with care) with one or more child(red) and a father who has a desire to be included in the children’s lives post separation. I wish to discuss the simple scenario of the matter of CONTACT or amount of contact, i.e. the SPLIT of time of the child between the parents.
    Why has it ended up in court in the first place? That is the ultimate question isn’t it? Why haven’t the parents been able to resolve the quantum of contact between themselves??
    So here goes the theory. There are only two types of parents who end up in court.
    First the System gives defacto control to the parent with care, the PWC becomes the “gatekeeper” of time or quantum, the legal system frowns hard on a parent (non resident) who takes matters into their own hands and self elects to “keep” the child longer than the PWC dictates.
    Thus the only, I repeat for clarity, THE ONLY parents who end up in the court system can be explained thus
    The PWC refuses to allow sufficient contact time to the NRP to the extent that it motivates the NRP to make a court application. No other conditions exist that would lead the couple to the doors of the court.
    If we have a PWC who concedes enough contact then there is no argument, if the NRP is not motivated enough to take action then there is no COURT conflict.
    Commentators deal in platitudes of words. The issues of “shared care” or “equal care” call for divisive debate.
    So why don’t the courts simply address the issue before them?
    The prelude question MUST BE “Sir (NRP) why are you before this court, are you wanting to have time with your children and if so what suggestion do you have as to the amount and will you please, detail how you will make that work around your life commitments?”
    (NB this scenario pre-supposes that the MAXIMUM time a child could have with each parent would be 50/50)
    Then “Madam (RP) as father has suggested a sensible division (presuming he has asked for 50/50 or less than 50/50) have you any child focused reasons why this should not be so?”
    Now it’s down to the RP to set out her “objections” list right from the start. Not muck about adding stuff in later, lets have a make your allegations now or forever hold your peace, lets get all the “dirt” out in the open in a cogent manner and write down all the issues that she feels are relevant.
    Then the court can decide what points to take up and what can be left to the bin of history. Then deal with the issues raised.
    If the RP cannot come up with any relevant child focused reasons then surely if the father can facilitate it then why cant it be like that?
    Why does the system rely on the status that the “mother” knows what’s best for the child without having to give any reasons???
    The system gives the balance of power in the hands of one person (the RP) and then expects the NRP to go along with whatever is decided, but what if the RP has a Machiavellian agenda? Then the power is in the wrong hands. And then the system complains that it takes longer for unrepresented “LIP’s “ to argue their case in court.
    Well make the system suit a simple resolution deal with the division of time as it is, a disagreement between two adults as to how much time the child will spend with each of them.
    Guess what, those parents who have already agreed the quantum in a reasonable manner to mutual satisfaction never darken the doors of the court do they? The system needs to look at how these parents choose the quantum and what that quantum is, in order to apply a sensible starting point to reasonable quantum.
    My own anecdotal evidence suggests that the parents not in the court system have somewhere between a 4/10 to 7/7 split.
    Bet this scenario would take between two and three hearings at 15-30 minutes for first two then 60 minutes to nail it down at the end.

    • I won’t address all the points in your post, but I will touch on two:

      I don’t think the court does rely on resident parent (mother) knows best. It may sometimes (often?) agree with the resident parent – but certainly not always. It is often the resident parent who is left very unhappy with the quantity of contact ordered.

      Secondly, I don’t quite understand your point about a maximum of 50% contact (you say “NB this scenario pre-supposes that the MAXIMUM time a child could have with each parent would be 50/50”) – if each parent has a maximum of 50% contact then there has to be 50:50 shared care (any other arrangement involves someone having more than 50%!) – I’m not sure if this is what you meant?

      And thirdly – if the only parents who come to court are the ones where the resident parent has not offered “sufficient” contact – how do you define “sufficient” or “enough”? Is “enough” as much as is asked for (demanded) by the non-resident parent? Is it 50%? Does it depend on the circumstances (and if so what circumstances)?

  5. russell armstrong

    LOL
    Just tongue in cheek you start off by saying you are going to address two points then end up doing three!

    First about the 50/50 contact

    When parents separate it would seem to me (if it can be given that we start off with two equally loving and caring parents), that if the parents live within a reasonable distance of each other and that the child goes to a school about the same distance from each parent (or within a reasonable journey) and that the child can socialise with his/her friends by equal measure at either parents house, then would it not be a childs desire to want to spend the most time with each parent (all be it separately)?

    From my observations many children express a desire to want to have the separated parents back together again as a family unit, of course the child cannot dictate this, but they can have the ability to spend equal time with each parent.

    This is not the perspective from the parents point of view but that from a childs. Thus it follows that the child can only have an equal share of time with each parent and thus maximises his/her time with either.

    We teach our children that sharing is good, from an altruistic point of view equal sharing must be a point to aim for, the rich giving back to the poor, I have two apples lets share I give you one and I then have one, equal, fair and honourable yes?

    Thus from a child focused point of view, having the ability to have equal time with each parent MUST be a good thing to aim for, from a childs point of view.

    This is not an argument for or against 50/50 care, equal shared care, or any other title that becomes a hook to hang an argument upon, but from a child centric (and simplistic) point of view.

    Now given that that should be from which the point of status quo should start from we can then ask each parent why this should not be so. The RP can then put forward any and all of (his/her) arguments that the other parent (oh sorry) the child should not have x time with the other parent and then the courts can make a determination from that.

    If the RP’s arguments are sound then we move away from the 50/50 start point, if the other parent cannot facilitate a reasonably sensible arrangement for a good quality regime (and lets face it ALL the studies agree that children thrive on a caring and consistent regime don’t they?) for the child then once again we move away from the 50/50

    I for one can talk about my circumstance, I would love a 50/50 regime but I recognise that as I live a bit to far from my childs school, then to take him to and pick him back up from school every day for 5 days every other week becomes a bit too much journey time for him and it eats into work working life too much. So I settle for a sensible 4/10 or 5/9 “balance” and an equal share of all school holidays. Although it took me 5 years of arguing in court to get to that point because the RP in that case simply refused to budge one iota, she would have preferred to have a 2/12 “balance” and gave no child focused reason why and the courts allowed that to sustain whilst I slowly chipped away and eventually got to the balance point I felt was good for my/our child.

    So the point I make is why start at the status quo that the system allows an RP to establish?

    Why not say, like they do in financial cases that the norm is that the outcome if fair for both parties (and by extension the children)

    If an RP knows that no matter what tricks they use to establish a low level of status quo (0/14, 1/13) goes before that when it come to court the court simply re-sets the equation to 50/50 now lets go, then they will not have the incentive to play the “game”

    And lets face it lawyers love an argument don’t they? that’s what they get paid for……………

  6. I have been a Mckenzie friend in numerous cases assisting LIPs. When I’ve assisted an LIP, at our first meeting one of main points I make is that it is my role to help them get to a satisfactory resolution as soon as possible, so that they can then get on with the much more important job of being a parent. Time after time cases I’ve been involved with have in fact been the opposite – they’ve been resolved much faster than cases where both parties have had lawyers. Like minded Mckenzie friends have said the same thing. It got to the point where more than one local lawyer has asked what we were doing to achieve such a speedy resolution.
    ‘Common sense, following the rules of the court, but refusing to play the games of the system and an overiding goal to achieve an appropriate, workable, parenting order.’

    • russell armstrong

      Have to totally agree with Kenin
      A decent McKenzie, provided that he/she is given the proper opportunity to talk with the other side has the benefit of cutting to the chase without the heavy weight of all that legal shenanigans getting gin the way.
      I bet get two decent McKenzies helping their clients and you will get far better outcomes for the children resulting in lower conflict levels for the parents in double quick time and that will be without having to cut an unequal (and secret deal) with the other side’s solicitor.
      The reason that two lawyers get the deal done quickly is because they agree to let one side get their way (normally the resident parent) and then the next time when the other solicitor represents the resident parent they get the “better” result.
      Its all a way of keeping the gravy train of argument going for the solicitors, create unfair outcomes and the system continues to be truly adversarial.
      Now of course it is now to the non resident parents solicitor to then tell him/her the bad news “I’m sorry but the courts wont see it that way and this is the best offer you will have so I suggest that you take what’s on offer……….”
      That the way I think the system works

      • Russell! I was reading happily away, thinking yes that’s all great I agree with what he says about the benefits of a decent McKenzie (leaving aside the dis-benefits of a rotten one, and sadly they do exist) – and then you go and start on with your secret deals and trading “good results” from hearing to hearing. That is just NOT either my practice or my experience. It is just not the way things work (although of course there are likely to be some examples of bad practice on the margins). If this is genuinely your perception of how lawyers work, or if you are just mischief making then i would be really worried about the advice you give to parents about engaging with lawyers. Is this how you tell them we behave? I’m not suggesting lawyers should not be criticised – for sure there are some things that some, many lawyers are not good at, and for sure current practice could always be bettered – but your suggestion is way out there. You are suggesting that lawyers routinely and systematically, as a matter of course, give knowingly bad advice to clients for the sake of an easy life and in order to string out cases? There may well be lawyers who don’t have the gumption to run an argument and who are over ready to concede (in fact, there are) – but your allegation is really attributing a totally different motivation to us – all of us. So I disagree really quite profoundly.

        • russell armstrong

          Hi Lucy, sorry for the slow response, but its been a bit busy here.
          In response to your comment, yes it’s something I truly believe a lot (not all) but a lot of lawyers do.
          Maybe I have just come across rubbish lawyers in my time, but yes I think they think of the dollar first, serving the system to serve them second, their (female in family matters) client third and the best interest of the child last, but only as long as it suits what their (female) client wants.
          Having a sensible dialogue with the other side to come to a reasonable arrangement outside of the court hardly ever happens if the resident parent instructs them to fight it.
          So what interests do lawyers represent first? Ah yes they have an overriding duty to the court, don’t they?
          next they are duty bound to do what their client instructs them to do?
          So even if the lawyer thinks that their client is wrong as soon as the client says I instruct you to fight this, all kinds of things can go wrong, and don’t give me the twaddle of the lawyer can walk away from such a client it simply doesn’t happen.
          NRP says I would like more time with my child. RP says no – result contested hearing, why are there so many contested contact hearings???? What aren’t all of them resolved outside the court system? After all its a simple mater of quantum up to the equal division of time.
          Its because the system is skewed to give the RP ALL the power and those RP’s who want to abuse their power are routinely supported by the legal profession called lawyers
          Of course in my humble opinion of dealing with lawyers from the stance of not having to serve the court first……..

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