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Three years ago I wrote an article for Counsel’s ‘Making it Happen’ section about a newly published best practice guide designed to increase the diversity of evaluators selected to hear private dispute resolution hearings in family law cases.
It is 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. These evaluation hearings happen as part of the standard court process in family cases: financial dispute resolution hearings (FDRs). When heard privately with a specifically retained evaluator, they become private FDRs (pFDRs). It is an approach analogous to the private healthcare system and similarly offers clients not only a shorter timeframe, but also a choice of setting for their hearing, and a choice of evaluator to hear it.
The pFDR process is virtually entirely self-regulated. The lack of formal regulation is helpful to clients in many respects, meaning practitioners can be flexible. But it became clear that there needed to be greater scrutiny to ensure that pFDR practice, and particularly the selection of pFDR evaluators, was non-discriminatory and allowed equality of opportunity.
I am a partner in a large and well-known family team in Central London. At the beginning of my work on this initiative, I had never had a pFDR before a woman evaluator. I carried out some in-house research which showed that only around 1% of the pFDRs my firm had dealt with in the two years up to December 2020 had been conducted before a female tribunal.
This shocking statistic was supported by research undertaken at the same time by a leading family law chambers. This very small percentage of women who are selected as evaluators was totally out of kilter when one looked at the Bar at large. Looking at the top-ranked family finance sets in Chambers and Partners, around 44% of their members were women. Women made up 52% of the juniors. At silk level it drops to 16% (a point I touch on below) but statistically, one would have expected a far higher proportion of pFDRs being heard before a woman as evaluator.
In October 2021 I drafted, with input from a large cohort of co-professionals in London, a best practice guide for the appointment of pFDR evaluators. The guidelines require shortlists to be prepared on a non-exclusive basis and, more importantly, clearly set out the roles that all family law professionals – including solicitors and law firms, chambers, clerks and counsel – have in supporting and effecting change and monitoring progress.
Covering the listing of pFDRs as well as recommendations for when discussing pFDRs with colleagues, peers and clients, the best practice was universally applauded and widely adopted. But it was a question of time before we could tell how much of a change it would make.
One of the vitally important parts of the initiative was a request that all firms and chambers should record their own data with the aim of revisiting the research. I am enormously grateful to the clerks at chambers who have worked so hard to keep those records and who have responded to my requests for updates and to the heads of chambers who have been supportive of that continuing monitoring taking place. Based on these updated figures I have reached the conclusions below.
When I first started looking into the numbers of women sitting as evaluators in pFDRs the statistics were dire. Back in spring 2021 only around 1% of evaluators in pFDRs were women. That was in contrast to the percentage of women at the family finance Bar overall which, at the time, I calculated to be about 37%.
When I checked the statistics in autumn 2023, the figure was somewhere in the 20% bracket. On the latest figures available, for autumn 2024, the percentage of pFDRs where the presiding evaluator is a woman stands at around 36%. It is a monumental change. And it has come about quickly and easily, simply as a result of all of the individuals in the profession changing their practice.
I should be clear that the data referred to was collected and analysed by lawyers and not statisticians. There will be hidden stories in the data that I have not been able to uncover. A small number of successful senior women evaluators may skew the statistics. That is something that was found when similar research was done on a much wider scale in the commercial arbitration space (ICCA 2020). And it is also quite possible that at the junior Bar, the work is spread less widely among women than men. But while there may be inaccuracies, I am confident that the data I have collected and been provided with is sufficiently detailed and clear to support the conclusions I have drawn.
Anecdotally, it was universally accepted by all I spoke to at the outset of the project that there was a significant issue with diversity. And I have been heartened and encouraged by the streams of women barristers who have told me about how their own pFDR practice has evolved as a result of the initiative. I have been told by other solicitors that they routinely quote the best practice when faced with shortlists that are not diverse. And I have seen myself that it is now expected that all junior barristers would be available to take on pFDR work as a part of their practice in a way that was not the case three years ago.
This excellent piece of wisdom is quoted on a fridge magnet in my kitchen at home. It certainly helped inspire me to take action here. What this process has taught me is that although everyone has a role to play when it comes to bringing about change, it is possible as an individual to do things that are quite small that help inspire quite big leaps.
In this instance, I think it also helped that I was a professional client. Family law is perhaps a prime example of a relationship-driven business and this was a consumer-driven initiative. As a professional client, I wanted to have access to a more diverse pool of pFDR evaluators, and I wanted the chambers I was engaged with to take diversity as seriously as I did. It was important to me, and it is important to all of the other co-professionals who have supported the best practice along the way.
One of the issues that has come to light as a result of this initiative is the high rate of attrition at the junior Bar and the very small number of women silks at the family finance Bar. It seems clear to me that organic change is either not happening or it is happening far too slowly.
As a professional client, I want the chambers I work with to promote their excellent women and to mentor them and encourage them to apply for silk. I also want the King’s Counsel selection process to reward and acknowledge the skills that I and my lay clients prize so highly. That may include fabulous advocacy in the High Court. But it also includes fabulous advocacy in non-court-based dispute resolution settings such as pFDRs and arbitrations, skills in acting as the tribunal in those settings, negotiation skills, client management skills, strategic vision and many other attributes. Are reported cases necessarily a badge of honour? In the family law world, a reported case can often be a sign of failure rather than success.
I am concerned that not enough is being done to address quickly the gender imbalance that exists. My hope is that there are some points from this article that might encourage greater critical thought to be given to this issue, and perhaps inspire someone somewhere to be the change we all wish to see on this front.
References
‘Avoiding gender bias in choosing a tribunal – lessons from the family law world’, Katharine Landells, Counsel March 2022
The ICCA Reports No. 8: Report of the Cross-Institutional Task Force on Gender Diversity in Arbitral Appointments and Proceedings, 2020 (updated in 2022)
Katharine Landells is a family law partner at Withers LLP.
Three years ago I wrote an article for Counsel’s ‘Making it Happen’ section about a newly published best practice guide designed to increase the diversity of evaluators selected to hear private dispute resolution hearings in family law cases.
It is 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. These evaluation hearings happen as part of the standard court process in family cases: financial dispute resolution hearings (FDRs). When heard privately with a specifically retained evaluator, they become private FDRs (pFDRs). It is an approach analogous to the private healthcare system and similarly offers clients not only a shorter timeframe, but also a choice of setting for their hearing, and a choice of evaluator to hear it.
The pFDR process is virtually entirely self-regulated. The lack of formal regulation is helpful to clients in many respects, meaning practitioners can be flexible. But it became clear that there needed to be greater scrutiny to ensure that pFDR practice, and particularly the selection of pFDR evaluators, was non-discriminatory and allowed equality of opportunity.
I am a partner in a large and well-known family team in Central London. At the beginning of my work on this initiative, I had never had a pFDR before a woman evaluator. I carried out some in-house research which showed that only around 1% of the pFDRs my firm had dealt with in the two years up to December 2020 had been conducted before a female tribunal.
This shocking statistic was supported by research undertaken at the same time by a leading family law chambers. This very small percentage of women who are selected as evaluators was totally out of kilter when one looked at the Bar at large. Looking at the top-ranked family finance sets in Chambers and Partners, around 44% of their members were women. Women made up 52% of the juniors. At silk level it drops to 16% (a point I touch on below) but statistically, one would have expected a far higher proportion of pFDRs being heard before a woman as evaluator.
In October 2021 I drafted, with input from a large cohort of co-professionals in London, a best practice guide for the appointment of pFDR evaluators. The guidelines require shortlists to be prepared on a non-exclusive basis and, more importantly, clearly set out the roles that all family law professionals – including solicitors and law firms, chambers, clerks and counsel – have in supporting and effecting change and monitoring progress.
Covering the listing of pFDRs as well as recommendations for when discussing pFDRs with colleagues, peers and clients, the best practice was universally applauded and widely adopted. But it was a question of time before we could tell how much of a change it would make.
One of the vitally important parts of the initiative was a request that all firms and chambers should record their own data with the aim of revisiting the research. I am enormously grateful to the clerks at chambers who have worked so hard to keep those records and who have responded to my requests for updates and to the heads of chambers who have been supportive of that continuing monitoring taking place. Based on these updated figures I have reached the conclusions below.
When I first started looking into the numbers of women sitting as evaluators in pFDRs the statistics were dire. Back in spring 2021 only around 1% of evaluators in pFDRs were women. That was in contrast to the percentage of women at the family finance Bar overall which, at the time, I calculated to be about 37%.
When I checked the statistics in autumn 2023, the figure was somewhere in the 20% bracket. On the latest figures available, for autumn 2024, the percentage of pFDRs where the presiding evaluator is a woman stands at around 36%. It is a monumental change. And it has come about quickly and easily, simply as a result of all of the individuals in the profession changing their practice.
I should be clear that the data referred to was collected and analysed by lawyers and not statisticians. There will be hidden stories in the data that I have not been able to uncover. A small number of successful senior women evaluators may skew the statistics. That is something that was found when similar research was done on a much wider scale in the commercial arbitration space (ICCA 2020). And it is also quite possible that at the junior Bar, the work is spread less widely among women than men. But while there may be inaccuracies, I am confident that the data I have collected and been provided with is sufficiently detailed and clear to support the conclusions I have drawn.
Anecdotally, it was universally accepted by all I spoke to at the outset of the project that there was a significant issue with diversity. And I have been heartened and encouraged by the streams of women barristers who have told me about how their own pFDR practice has evolved as a result of the initiative. I have been told by other solicitors that they routinely quote the best practice when faced with shortlists that are not diverse. And I have seen myself that it is now expected that all junior barristers would be available to take on pFDR work as a part of their practice in a way that was not the case three years ago.
This excellent piece of wisdom is quoted on a fridge magnet in my kitchen at home. It certainly helped inspire me to take action here. What this process has taught me is that although everyone has a role to play when it comes to bringing about change, it is possible as an individual to do things that are quite small that help inspire quite big leaps.
In this instance, I think it also helped that I was a professional client. Family law is perhaps a prime example of a relationship-driven business and this was a consumer-driven initiative. As a professional client, I wanted to have access to a more diverse pool of pFDR evaluators, and I wanted the chambers I was engaged with to take diversity as seriously as I did. It was important to me, and it is important to all of the other co-professionals who have supported the best practice along the way.
One of the issues that has come to light as a result of this initiative is the high rate of attrition at the junior Bar and the very small number of women silks at the family finance Bar. It seems clear to me that organic change is either not happening or it is happening far too slowly.
As a professional client, I want the chambers I work with to promote their excellent women and to mentor them and encourage them to apply for silk. I also want the King’s Counsel selection process to reward and acknowledge the skills that I and my lay clients prize so highly. That may include fabulous advocacy in the High Court. But it also includes fabulous advocacy in non-court-based dispute resolution settings such as pFDRs and arbitrations, skills in acting as the tribunal in those settings, negotiation skills, client management skills, strategic vision and many other attributes. Are reported cases necessarily a badge of honour? In the family law world, a reported case can often be a sign of failure rather than success.
I am concerned that not enough is being done to address quickly the gender imbalance that exists. My hope is that there are some points from this article that might encourage greater critical thought to be given to this issue, and perhaps inspire someone somewhere to be the change we all wish to see on this front.
References
‘Avoiding gender bias in choosing a tribunal – lessons from the family law world’, Katharine Landells, Counsel March 2022
The ICCA Reports No. 8: Report of the Cross-Institutional Task Force on Gender Diversity in Arbitral Appointments and Proceedings, 2020 (updated in 2022)
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