new balls please
Those who follow my work will know that I hung up my court gown some time ago, that my ethos in conflict intervention has moved towards helping those in conflict engage with it constructively. As with current trends in this field, although my initial post-litigation training focused solely on mediation, over time I’ve begun to adopt a less defined role, and therefore, rather than holding up mediation before those in conflict as the only path they need to take, rather than assuming that it’s the magical answer to everything, actually I’ve come to find that what they really need is for us to help them towards a path that feels right for them, that can twist and turn according to what they need instead of how it’s been laid out before them.
And so, some time having passed since I was last in a courtroom, in recent weeks I’ve been picking up with some real sadness, from pockets all around the country, that regrettably the awful games I remember being played out in our courts are still running in an endless tie break, that despite high falutin’ talk of improvements, they’re still wreaking havoc in the lives of those whose interests may be better served elsewhere.
(and yeah, apologies for the tennis puns!)
In a recent judgement in the Scots Court of Session in the appeal by SM against CM  CSIH 1, the court commented on some areas of concern which, I feel, strike right at the heart of our civil justice system. In short, this was a family matter that began when the child in question was one year old, and finished just after he was six (a pretty short duration compared with some I’ve had the distress of witnessing); the issues before the court weren’t particularly complex; and the case management throughout the matter was terrible. Amongst other things, the court said this:
The passage of time can have irremediable consequences for relations between the child and the parents, particularly the non-cohabiting parent seeking contact or greater contact…The time taken to resolve disputes about contact should be measured not in years but in weeks or, at most, months. We recognise that there may be subsequent applications to vary contact arrangements, but the initial decision should be capable of being made, following a short well-organised evidential hearing, within this timeframe…
…It may be difficult in many if not most courts to allocate the case to a particular sheriff [judge] who will then take responsibility for seeing it through from start to finish…But it would undoubtedly make a difference…
…we see no reason in principle why, in most cases…on the earliest occasion on which the matter comes before the court, the sheriff should not lay down a strict timetable for all steps leading up to a fixed hearing date of a fixed duration (to come on within a matter of weeks or, at most, a few months) and give such further directions…as are needed to ensure not only that the case comes to a hearing at the identified date but also that it will conclude within the time fixed for that hearing.
Sounds pretty sensible, right?
Well, that depends how you read this. Right now, the word on the street is that some lower courts are pouncing on this judgement, even though it’s not enforceable on them, to justify a shift in how family cases are managed from the flexible approach they’ve adopted for years towards something way more rigid. In other words, if you’re in conflict with your co-parent and you find yourself in a Scottish court, you’re running a real risk that, no matter what you do, you’ll be locked into a fixed path that propels you towards giving evidence under oath in a witness box, and that ends with some pretty huge decisions about the life of your family being ripped from your hands and into those of a judge you don’t know.
Legal professionals will tell me, of course, that not all courts are like this. But they’re missing the point. Here are judges, in the Inner House of one of the highest courts in our land, telling us that the system’s not working. Read the judgement yourself – they’re not just talking about one court here, and they’re definitely not the first higher court to pass comment on this concern.
But hey, here’s the kicker. Their answer to this kind of issue, as you may well anticipate given where it is they’re sitting, is to rig the system even more so that it’s less flexible, less pliable by experienced lawyers who’ve learned how to play the game.
rain delays and court covers
So maybe it’s my family law background that made me choose this case to highlight, but if you think that it’s only the resolution of family conflict that’s under threat in Scotland, take one look at the recent report by the Scots Civil Justice Council arising from its comprehensive project on reforming procedure in the courts. The more I read it, the more my shoulders weigh heavily with the feeling that the entire project is about placing a cover over the courts to protect them from the rain, and a re-painting of the lines when the sun returns.
We have a real opportunity here to take a fresh look at how this country might help those in conflict. There are encouraging, if not muffled, noises being made about digitising some areas of justice, about the application of ODR in small claims thereby echoing what’s been developing long before now in other progressive jurisdictions. But that aside, if all they plan to do is to make more efficient a heaving, bloated, over-funded adversarial process, without addressing the huge advancements in understanding we’ve made in conflict engagement, neuroscience, social integration that have made clear the benefits to all of embracing rather than entrenching our differences, then our institutions and our state will be doing those in conflict a total disservice.
There’s a consultation supposed to be happening around the country about the civil justice system. It’s taking place right now. Let’s make it focus on welfare rather than warfare. Let’s withdraw our consent to the government’s perpetuation of conflict, to its endless financing and tweaking of a game that’s been played for way too long. Let’s use this consultation to shout to the rafters that genuine change won’t happen unless the entire system of civil justice is redesigned from the bottom up, from scratch.
Let’s set the rules, therefore, for a totally new game that’s molded around the needs of those in conflict, one that still protects them if they need protected, but in which we don’t get to tell them that we know, that society knows, more than they do about how to resolve their issues, in which we can put a strong, welcoming arm around their shoulders and give them what they need to move on.
I don’t know about you, but I’d love to play that game!