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As COVID put increasing pressure on an underfunded family justice system, it became common practice in London and elsewhere to attempt to resolve financial family disputes by hiring a ‘private judge’ (either a retired High Court judge or practising member of the Bar) to give parties a neutral evaluation of their case at a private court hearing. It is an approach analogous to the private healthcare system. When these hearings happen as part of the standard court process in family cases, they are called Financial Dispute Resolution hearings (FDRs). When heard privately with a specifically retained evaluator, they become pFDRs.
Private FDRs are a vital tool for many family law practitioners to try to bring about an early resolution of financial remedy claims. This alternative means of progressing matters is virtually entirely self-regulated. The lack of formal regulation is helpful to clients in many respects, meaning practitioners can be flexible. But a need has been identified to ensure that pFDR practice, and particularly the selection of pFDR evaluators, is non-discriminatory and allows equality of opportunity.
I am a solicitor in a large and well-known family team in Central London. In January last year, I realised that, although pFDRs were being adopted in virtually every single case in London, I had never had a pFDR before a female tribunal. Ever.
My experience was not unique. I carried out some research in house which showed that only around 1% of the pFDRs we had dealt with in the two years up to December 2020 had been conducted before a female tribunal. That was in spite of the representing counsel in those cases having been 50/50 men and women. These statistics were supported by some research undertaken by a leading family law chambers. This very small percentage of women who are selected as evaluators is totally out of kilter when one looks at the Bar at large. Looking at the top ranked family finance sets in Chambers and Partners, around 44% of their members are women. Women make up 52% of the juniors. At silk level it drops to 16% (a question to be addressed in another article on another day perhaps). And so, statistically, around one in five pFDRs at silk level or above should be before a woman, and half of them at junior level.
After an extended dialogue on numerous Zoom calls with around 60 other family law practitioners, mainly in London, the overwhelming consensus was that the profession had been sleepwalking somewhat and that this was an issue that needed addressing urgently. There were lots of reasons put forward as to why this degree of inequality had arisen but all roads led back to there having been conscious or unconscious bias in play.
It became clear that the issue needed to be brought to the fore, not just to promote the excellent women doing this work and to support progression at the Bar more generally, but also because more diverse groups make better decisions, and better decisions are better for our clients.
I therefore drafted, with input from the lawyers at the meetings, a best practice guide for the appointment of pFDR evaluators, which requires shortlists to be prepared on a non-exclusive basis, and which sets out clearly the roles that we all have in effecting this change. The principal tenets of this best practice are set out below. They are put forward with the aim of promoting diversity and equality. The best practice has been universally applauded and, more importantly, adopted, and my hope is that in sharing this experience, not only will a wider audience be made aware of its existence but there may be other areas of work where a similar approach would support greater diversity and equality.
When listing pFDRs, the following approach is recommended for application nationally:
It is suggested that the following points should be borne in mind when discussing pFDRs with colleagues, peers, and clients:
Solicitors in a position of shortlisting and selecting pFDR evaluators have a central role to play in ensuring that their approach to that shortlisting and selection is inclusive, and non-discriminatory. While it is acknowledged that very often solicitors will want to recommend evaluators who are tried and tested, those in the position of appointing pFDR evaluators must be conscious about the choices they make and be aware of the potential for bias in that process.
Solicitors also have a role to play in raising awareness among their peers and questioning and challenging selections where appropriate.
Solicitors are also encouraged to collect data, as set out below, to monitor progress.
Chambers, clerks and counsel play an important role in promoting individual evaluators within their chambers and supporting the shortlisting and selection process as follows:
The data referred to above was collected by lawyers and not statisticians! There may be slight inaccuracies but given the stark conclusion, I am confident that the data amassed is sufficiently clear. Anecdotally, it was universally accepted by all I spoke to that there had been a significant lack of shortlisting or selection of women evaluators for pFDRs in marked contrast to the representation of women at the Bar and in the judiciary as a whole.
As set out above, all firms and chambers are being encouraged to record their own data with the aim of revisiting the research in six months and then a year’s time to see if there has been an improvement in the statistics as a result of these suggestions.
Counsel’s clerks have also been asked to keep a record where requests are made for pFDR evaluators and to note whether those requests follow the best practice guidance set out above. That will enable an assessment to be made as to whether this guidance is being carried into effect.
This data-gathering exercise, and the resultant guidance above, did not seek to address inequality affecting groups other than those who identify as women and did not seek to address any other area than pFDR practice. Inequality affecting any protected characteristic within any practice area should be urgently addressed through evidence and recourse. All efforts to expand this work to address all inequality wherever it is found is wholeheartedly endorsed and supported.
As COVID put increasing pressure on an underfunded family justice system, it became common practice in London and elsewhere to attempt to resolve financial family disputes by hiring a ‘private judge’ (either a retired High Court judge or practising member of the Bar) to give parties a neutral evaluation of their case at a private court hearing. It is an approach analogous to the private healthcare system. When these hearings happen as part of the standard court process in family cases, they are called Financial Dispute Resolution hearings (FDRs). When heard privately with a specifically retained evaluator, they become pFDRs.
Private FDRs are a vital tool for many family law practitioners to try to bring about an early resolution of financial remedy claims. This alternative means of progressing matters is virtually entirely self-regulated. The lack of formal regulation is helpful to clients in many respects, meaning practitioners can be flexible. But a need has been identified to ensure that pFDR practice, and particularly the selection of pFDR evaluators, is non-discriminatory and allows equality of opportunity.
I am a solicitor in a large and well-known family team in Central London. In January last year, I realised that, although pFDRs were being adopted in virtually every single case in London, I had never had a pFDR before a female tribunal. Ever.
My experience was not unique. I carried out some research in house which showed that only around 1% of the pFDRs we had dealt with in the two years up to December 2020 had been conducted before a female tribunal. That was in spite of the representing counsel in those cases having been 50/50 men and women. These statistics were supported by some research undertaken by a leading family law chambers. This very small percentage of women who are selected as evaluators is totally out of kilter when one looks at the Bar at large. Looking at the top ranked family finance sets in Chambers and Partners, around 44% of their members are women. Women make up 52% of the juniors. At silk level it drops to 16% (a question to be addressed in another article on another day perhaps). And so, statistically, around one in five pFDRs at silk level or above should be before a woman, and half of them at junior level.
After an extended dialogue on numerous Zoom calls with around 60 other family law practitioners, mainly in London, the overwhelming consensus was that the profession had been sleepwalking somewhat and that this was an issue that needed addressing urgently. There were lots of reasons put forward as to why this degree of inequality had arisen but all roads led back to there having been conscious or unconscious bias in play.
It became clear that the issue needed to be brought to the fore, not just to promote the excellent women doing this work and to support progression at the Bar more generally, but also because more diverse groups make better decisions, and better decisions are better for our clients.
I therefore drafted, with input from the lawyers at the meetings, a best practice guide for the appointment of pFDR evaluators, which requires shortlists to be prepared on a non-exclusive basis, and which sets out clearly the roles that we all have in effecting this change. The principal tenets of this best practice are set out below. They are put forward with the aim of promoting diversity and equality. The best practice has been universally applauded and, more importantly, adopted, and my hope is that in sharing this experience, not only will a wider audience be made aware of its existence but there may be other areas of work where a similar approach would support greater diversity and equality.
When listing pFDRs, the following approach is recommended for application nationally:
It is suggested that the following points should be borne in mind when discussing pFDRs with colleagues, peers, and clients:
Solicitors in a position of shortlisting and selecting pFDR evaluators have a central role to play in ensuring that their approach to that shortlisting and selection is inclusive, and non-discriminatory. While it is acknowledged that very often solicitors will want to recommend evaluators who are tried and tested, those in the position of appointing pFDR evaluators must be conscious about the choices they make and be aware of the potential for bias in that process.
Solicitors also have a role to play in raising awareness among their peers and questioning and challenging selections where appropriate.
Solicitors are also encouraged to collect data, as set out below, to monitor progress.
Chambers, clerks and counsel play an important role in promoting individual evaluators within their chambers and supporting the shortlisting and selection process as follows:
The data referred to above was collected by lawyers and not statisticians! There may be slight inaccuracies but given the stark conclusion, I am confident that the data amassed is sufficiently clear. Anecdotally, it was universally accepted by all I spoke to that there had been a significant lack of shortlisting or selection of women evaluators for pFDRs in marked contrast to the representation of women at the Bar and in the judiciary as a whole.
As set out above, all firms and chambers are being encouraged to record their own data with the aim of revisiting the research in six months and then a year’s time to see if there has been an improvement in the statistics as a result of these suggestions.
Counsel’s clerks have also been asked to keep a record where requests are made for pFDR evaluators and to note whether those requests follow the best practice guidance set out above. That will enable an assessment to be made as to whether this guidance is being carried into effect.
This data-gathering exercise, and the resultant guidance above, did not seek to address inequality affecting groups other than those who identify as women and did not seek to address any other area than pFDR practice. Inequality affecting any protected characteristic within any practice area should be urgently addressed through evidence and recourse. All efforts to expand this work to address all inequality wherever it is found is wholeheartedly endorsed and supported.
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