Michelle Uppal speaks on collaborative law at family dispute resolution conference

Michelle Uppal, head of family law at Miles & Partners Solicitors in London was asked to be a speaker at this year’s Resolution family lawyers conference.

Michelle was asked to share her thoughts and experience of practicing collaborative law in the London legal market.

Here is a transcript of her speech, for those who missed it, which explores the issue:

If dispute resolution is four course meal – why is collaborative practice not even on the menu?

Michelle Uppal

Debate speaker

Dispute Resolution Conference Oct 2018: 

Collaborative practice is rewarding and transformative work.

I have been practicing family law for 18 years now and have been a collaborative practitioner since 2007 and trained as a mediator in 2011, achieving accreditation in 2016.

The collaborative training completely transformed my own practice placing me firmly on the path of dispute resolution. At that time, I joined two PODs and the London Umbrella Group, campaigning with many of you here to increase the profile of collaborative practice.

I was a POD liaison officer for seven years until I stepped down, handing over the baton to another member of my City of London POD to go on maternity leave.

All three practice groups were very active for about five years with huge amounts of passion and enthusiasm. We were all inspired.

It was my City of London practice group (POD) who created the Punch and Judy collaborative divorce, posted on YouTube in 2012. The video depicted Punch having an affair with Crocodile, with the tagline ‘stop texting and start talking’. It didn’t go viral, but we have had a few thousand hits!

Click here to watch Punch and Judy collaborative divorce video  

I have been very fortunate to have completed over 20 collaborative cases over the years. However, in contrast with what Tasha Bevan-Stewart has just talked about, simply put – there is significantly less work in our London community.

I remain passionate about the process, a true believer and have always regarded myself as a purist of collaborative practice.

Once the umbrella group fell away and POD attendees dwindled in numbers – I went from being involved in three practice groups to one which remains active today, but not necessarily in passing collaborative cases between us. 

When asked to be part of this debate, to be honest, I felt clueless and really didn’t know where to start with the question: Why is collaborative law is not on the menu? How we have reached this point and how we get it back on the menu?

As I am not on the dispute resolution committee or part of the collaborative working party, I needed to get up to speed with what has been going on.

I have to say, I’m really encouraged by what is going on behind the scenes and the shift in Resolution’s focus on collaborative practice from mediation, with last year’s POD liaison officer’s debate and the objectives set down by the collaborative working party.

However, members of my own POD are disillusioned. Those who are trained, have stopped believing in the process and I get a real sense from colleagues who are not yet trained and not mediators there is no impetus to train.

Why is this? Could it be because of bad experiences? Some tell me it is too much effort and the risk of losing the client a disincentive. Others tell me that Resolution’s focus has often been on mediation and there is a lack of training and marketing for collaborative practice.

I believe that there has been a failure to properly explain the purpose behind having to change lawyers i.e. the disqualification clause and the inability for practitioners to sell this as a positive. For example, saying to client ‘I am your lawyer, I am committed to the process, if it falls apart, it will not be because of me.’

While it is a process for clients, it is also a process for lawyers. Some feel that Resolution have done very little to alleviate these concerns.

While I am not advocating collaborative like co-operative practices – we have had many of those debates over the years – there must be an alternative?

The current practice is too idealistic in its current form. Those of us who have done a number of cases all know that in the lifetime of a collaborative case it can take shape in a number of forms. 

By way of example, one of my longest collaborative cases is just over six years and I am very pleased to say that we have the decree absolute and approved consent order.

This is a case whereby I was introduced to the GROW model of working. An excellent family consultant chaired the meetings and worked in parallel with the parties on children matters. Costs in that case were successfully staged and the parties knew how much each stage was going to cost and when to pay it.

However, after a couple of years of meetings and once the outline of a financial settlement was reached, the parties no longer wanted a final four-way meeting to iron out issues. There was a family home to buy and a number of assets overseas. My collaborative colleague and I worked very closely together to ensure that the process did not break down and provided the parties with the space they needed. We encouraged the parties to have a final four way but did not insist on this although we knew it would really help.

So, in a sense, we had no choice but to vary informally the terms to the participation agreement, to fit in with what the clients wanted and needed. So, this case moved to more solicitor negotiations and required my collaborative colleague and I to not lose sight of the process even though it had changed. However, on reflection, what we stopped doing was include the clients into our e-mails, we sent letters to each other when we did say at the outset we wouldn’t. There was no final four-way meeting to sign off. Was it still collaborative? Or did it turn into something else?

As I have said already, I am encouraged by how much is going on behind the scenes. Importantly, we now have the collaborative working party with set objectives to do a number of things, and importantly, focus on training: first meeting training, dispute resolution tool kits, marketing, pricing policies, complete the ‘return form’ and as part of Resolution’s wider campaigning under the manifesto for family law – renaming the MIAMS (Mediation, Information and Assessment Meeting) to IAM – (Information and Assessment Meeting) and that it should be possible for others to offer this rather than just mediators.

For me, the focus has to be on training to revitalise the pallet… like a lemon sorbet!

I think dispute resolution training should come through from the roots, as early as the elective for family law on the Legal Practice Course and should be an integral part for all practicing family lawyers.

In conclusion, I support the motion that sadly collaborative practice is not on the menu. It is not being offered because it is too inflexible.

I would like to:

• explore a different model, an adaptable model where we have guidelines and training to bring in not only family consultants, but mediators and arbitration to assist with discrete issues.
• explore the merits of a second or supplemental agreement which allows us to depart from the traditional model part way through a case (if the case needs it), so we are not diluting the collaborative process
• keep the disqualification clause in because with the right marketing this is so valuable.

A recent point was made to me while preparing: when you are a collaborative lawyer or mediator your Resolution membership fee increases. I know why this is – however, as a dispute resolution practitioner we are striving to improve lives and keep things out of court. Surely, we should pay less for our fees than those who are not trained? A cheeky and controversial point, I know, but this could be incentive for others to join us on this incredible path.

For more information on collaborative law or any other family law matter, please contact Michelle Uppal on 020 7426 0400 or email MU@milesandpartners.com.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.