Coordinators: Bregje Dijksterhuis (Utrecht University), Mavis Maclean (University of Oxford), Rachel Treloar (Keele University)
Description of the meeting
This workshop from the RCSL Legal Professions WG aims to inform attempts to evaluate Family Justice Systems by first examining what a Family Justice System (FJS) aims to achieve. Following our recent work on Digitalisation in Family Justice Systems we noted the focus on Online Dispute Resolution, and the problems arising. We understand more clearly that dispute resolution is only a part of what is needed by those approaching a Family Justice System . People experiencing a major life change such as divorce or separation, especially if they have children, are likely to face challenging decisions about how to manage future child care and finances. If there are problems arising these may be resolved, or may develop into disputes with high levels of conflict. At what stage and in what way does the justice system become involved? Does it have functions other than dispute resolution, whether traditional or alternative in form? Might it prevent, or minimise as well as resolve dispute when it arises? How might a FJS develop these functions at a time of austerity and limited public funding… through direct provision, through referral to other services, or by acting as a hub for information and self-help? Should a FJS offer help in the form of information, direction to other services, or direct provision? We would suggest that a broader approach might impact on the FJS budget but could conserve resources currently required for the related health, welfare, housing, education and employment needs of those with family problems. The form and degree of this kind of involvement varies widely between the home jurisdictions of our group, and we are interested in developing a new comparative perspective.
To begin, we would examine whether the family justice systems (FJS) in our jurisdictions are concerned only with dispute resolution and law enforcement, or do they provide or refer people with family issues at an early stage to sources of Information, Advice and Support? For example, if people are informed and understand already what kind of arrangements are widely accepted in their society for people like themselves, and what kind of arrangement a court would impose if adjudication or enforcement was needed, could problems then be solved with less likelihood of developing into a conflict or dispute? If two people walk along a path which divides into two they may have a problem deciding which way to go to get home, but if they receive information about the route of the pathways they can solve the problem without coming into conflict. If information leads to a need for action, then advice on next steps may also be needed. And if the path is difficult, support would ensure safer arrival at the destination.
Secondly, we will explore how well individual needs and government strategies fit together in our FJS. It seems that people want help with solving problems, while governments look for fast low cost conflict resolution. Our Family Justice systems at present may come into play too strongly and too late. We will look at which kinds of intervention are helpful with which level of difficulty, and how these are provided or might best be developed. For example, is self-help support useful with pre-dispute problems and with low level conflicts, or can it be used for high conflict cases? Can ADR help with finance or children or both? How can the fragmenting marketplace with different forms of services be enabled by a FJS to help those with limited resources in the most effective way?
Thirdly, we will probe how family justice can be accessed without publicly funded legal help. While we are already familiar with “legally assisted mediation,” what are the potential contributions of paralegals, of “barefoot lawyers” with a limited range of activity or legally enhanced lay advice givers? What role do student legal clinics and legal outreach clinics play, and what challenges do they face in providing such services? How can digital technology be developed? We will compare notes from our respective jurisdictions and disciplines and consider new alternatives moving forward.
The proposed workshop moves forward from our last meeting on “Digital Family Justice: From Alternative Dispute Resolution to Online Dispute Resolution”, now in press in the Onati Hart Bloomsbury Series, to raise this basic question: what is the purpose of a Family Justice System? In many jurisdictions policy is currently focussed solely on dispute resolution, and ways of improving value for money. Cuts in service and the moves to digital process have raised concerns about access to justice and social needs. We are interested therefore in the development of a wider focus to include preventing or managing disputes, rather than only adjudicating or settling, and providing information, support, referral to services, and even direct provision of services for those with divorce or post-separation family issues. The additional cost to a Justice budget might be at least in part recoverable from reduction in need for other services such as health, and social security. For example, family mediation was widely adopted by policy makers as likely to be cheaper than lawyers. But it has also, though not widely used, moved the focus of justice away from disputes towards problems, and away from adjudication towards support and prevention of further problems. In some jurisdictions, including Scandinavia, the emphasis on protecting and supporting children leads to service referral and the involvement of childrens services. In the area of financial arrangements after family breakdown the development of financial advice services about income support state help, or making most effective use of the resources available to the family, have been slower to develop (eg UK). We hope to examine if and how these different polices are developing, and how they are funded and put into practice in the broad range of jurisdictions represented by our participants.
This Family Justice Workshop forms part of a programme of work looking at access to justice in family matters, each workshop addressing a particular policy and practice issue. So far we have looked at “Managing Family Justice in Diverse Societies”, edited by Mavis Maclean and John Eekelaar, published in the Onati International Series in Law and Society (ISLS) Bloomsbury 2016 which looked at the response of law to different family practices arising from cultural and religious beliefs. We considered the problems of “Delivering Family Justice in the 21st Century” edited by Maclean and Eekelaar with Benoit Bastard, Onati ISLS Bloomsbury 2015, which looked at the response of policy makers to austerity, in particular by offering Alternative Dispute Resolution. Our most recent book “Digital Family Justice” edited by Maclean and Dijksterhuis ONATI ISLS Bloomsbury 2019 comments on the failure of mediation to provide a cost effective substitute for courts and lawyers, and looks at how policy makers are now seeking new ways to move more responsibility onto the shoulders of the men and women with family issues to manage and resolve, turning to digital methods to process cases and even resolve disputes online. This line of development has however been called into question by the sudden failure of the path breaking Rechtwijzer online dispute resolution system in the Netherlands, due to both lack of take up and lack of confidence from the legal professions and judiciary. This may have been due to concentration on technical developments and insufficient attention to consumer needs. But online methods may yet help with expediting procedures without conflict, and may even be able to develop some of the duty of care traditionally offered by the legal professional and valued by the user.
Our experience in Oñati
Our Workshop on “What is a Family Justice System for?” had originally been arranged for the end of April and we were disappointed to have to postpone due to the COVID crisis. But IISL suggested a Virtual Workshop, for September 10-11. We were a little nervous as a group from a number of countries, with varying levels of IT skill and access to WiFi and equipment . But with the support of IISL we were able to hold a highly successful meeting which not only produced exciting papers and stimulating discussion, but also had a profound pyschological effect on the participants: we felt alive! We were in touch with our colleagues and developing ideas and projects again ! We looked to the future while we enjoyed the present. We of course missed being in Oñati , but Malen even provided us with views of the University as a screensaver, and opened the windows for us to hear the bells, always a good way of regulating timing in sessions.
We were helped by having a preparatory online session to test access and equipment, particularly the aspects of WebX which were not familiar to all, and Malen prepared a short guide. We circulated papers in advance to help with the extra difficulty of understanding new material on line, we had short presentations (15minutes) with 10 minutes of questions and response, using the chat function to make best use of time. And we had frequent breaks, at least 15 minutes after every session of 3 papers. There were some difficulties with sound for some participants, but these could be overcome by having read the papers in advance, and by using the chat and a Workshop WhatsApp .
We came away refreshed and delighted by the experience which IISJ made possible, and highly recommend it to others,
Mavis Maclean, Oxford