The requirement to have lawyers on both sides on divorce has long been the source of frustration for many clients. The introduction of Resolution Together (RT) in 2022 gives the profession the means, in the right cases, to address this frustration. At Hunters we have been doing this work since 2023 and presently three of us in the department undertake it.
The launch of, and initial training in, RT was the end of a painstaking process undertaken by Resolution to build a robust scheme which has persuaded the SRA, CILEX, and the Bar that such a scheme was possible within existing regulatory constraints.
The concerns expressed by the SRA reflect the instinctive reaction of many lawyers at the thought of "a scheme whereby separating couples will be able to retain one legal professional to advise and assist them in reaching an informed and agreed outcome", which is how RT is defined.
How could one solicitor possibly act for both? This remains the concern for many firms, and particularly their COLPs, and, anecdotally, some PI insurers, although in our case, our undertaking such work was agreed to virtually without discussion, perhaps due to the precautions I describe below.
Those undertaking RT work have no regulatory dispensation. As Angela LakeCarroll, one of the pioneers of RT, was at pains to stress in my training, we have to work "within regulation". Accordingly, under the SRA code, we must both act in the best interests of each client and not act "for a client in a matter where that client has an interest adverse to the interest of another current ... client".
Those who crafted RT were able to show the SRA that its Code1 in relation to Conflicts of Interest allowed a solicitor to accept retainers from both separating spouses where:
- Each had a substantially common interest in relation to the matter
- Both have given informed consent to the solicitor acting; and
- The solicitor is satisfied it is reasonable to act for both.
In essence, RT is based on the understanding that a divorcing couple may have a common interest in reaching a fair and amicable resolution of the issues arising from their separation. That they initially have differing views on some of the issues is not, of itself, a conflict of interest where both are open to hearing the other's perspective and willing to make compromises. If it becomes clear that there is a fundamental disagreement or difference of opinion which cannot be worked through using the various impasse techniques available to us, then a conflict will have arisen and RT must be brought to an end, with guidance given to each party on alternative ways forward.
Three tools are essential in the process by which an RT case is onboarded: an in-depth separate meeting with each client; a checklist of issues to cover with clients and on which the practitioner must have satisfied him or herself; and a comprehensive retainer letter. I will take each in turn.
Before starting RT, it is necessary to have a one-on-one meeting with each client. You may have already had a brief joint conversation to explain what RT is, and the individual meetings are designed both to check whether each genuinely wishes to use RT and, separately, whether it is in their best interests to use it rather than one of the many alternative approaches now available. In this regard Resolution strongly recommends that anyone undertaking RT is trained in recognising domestic abuse and coercive control because its existence in a relationship is likely to preclude its use entirely. We facilitate this initial stage by use of a comprehensive checklist developed to ensure that we explain all the essential aspects of RT, address all relevant circumstances, and which includes questions to address in considering whether RT would be in each client's best interests. For the critical individual meetings, our checklist includes a link to Resolution's Domestic Abuse screening questions and reminds us to seek full information on their individual circumstances, the aims each has from the process and confirmation that consent exists for a joint retainer. It then lists what we need to have satisfied ourselves about if we are to undertake the case on an RT basis. Our internal procedures require a note to be made of our conclusions, which should be reviewed by one of the other RT practitioners in the department. In training, we were told that if we screen carefully, RT should succeed – and we have found that this is borne out, as settlement has been agreed in all the cases we have taken on to date.
Our approach (I know other firms do things differently) is to sign the full retainer letter only after the individual meetings have taken place and when a positive assessment has been made. This can of course be several hours into the process, which we cover with a fixed fee retainer for the initial individual meetings. Whilst using two retainer letters may not be the most streamlined approach, it avoids having to provide for those cases not suitable for RT. We are also better placed to provide a costs estimate after the initial meetings.
The full retainer letter makes clear that all information will be shared, for the clients to confirm their free wish to enter a single retainer which they consider to be in their best interests, to acknowledge their ability to seek separate advice whenever they wish, for the practitioner to confirm that they think it reasonable to act for both clients , that this will be kept under continual review and that if that view changes, the retainer will be terminated. The retainer letter will also make clear that, in that event, the practitioner cannot take on any role for either client individually.
And then the work begins in earnest, conducted in the main in joint meetings and follows a predictable course, involving financial disclosure, together with the instruction of experts as necessary, followed by legal advice on the likely range of outcomes and on any proposals the parties have tentatively agreed between themselves. The advice given is legal and pragmatic; unlike when acting for a single client there is no need for strategic advice. We have found that where such advice is known to be very much in one party's favour, it can be easier to deliver that in a one-to-one meeting, so long as the same advice is given to each. When an outcome has been decided upon, there is a mandatory 14-day cooling off period, when either party can consult elsewhere, and as a further discipline any agreement reached is reviewed by one of the other RT practitioners just in case one has ceased to see the wood for the trees.
Resolution Together represents a significant evolution in how we, as family lawyers, can support separating couples—offering a collaborative, transparent, and efficient alternative to the traditional adversarial model.
While it demands careful screening, rigorous adherence to regulatory boundaries, and a high level of professional judgment, our experience at Hunters has shown that, when used appropriately, RT can lead to constructive outcomes that genuinely serve the best interests of both clients. As the profession continues to embrace this model, we expect to see more firms recognising its potential to transform the divorce process into one that is less combative and more focused on resolution
Orginally publsihed by ThoughtLeaders4 HNW Divorce.
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