Time to Stop Using the ‘F’ Word

Simple words don’t provide clarity – it’s time we drilled down into specifics

We seem to live in a world of clichés. Rather than be specific as to what we intend to do or what we want to achieve, we talk in bland generalities. It did for our last Prime Minister, Keir Starmer. He was elected on a platform of “change”. Two years later, no one really knew what that change was meant to be and certainly they did not feel it had been achieved. He has been replaced by our latest Prime Minister, Andy Burnham. His message is one of “hope”.

Can any of us really articulate what constitutes change and what is hope? How can these be measured? Change for the better or possibly the worse. Hope things improve or hope things don’t get any worse?

Those who practise family law will be familiar with a similarly bland concept. Since the landmark case of White v White in 2000 family lawyers have been told that they should aim to achieve “fairness” in their cases. Lord Nicholls, who developed this notion admitted at the time that it was an elusive concept thus admitting it was not terribly helpful. He went on to say that like beauty, fairness would be in the eye of the beholder. Those who regularly “swipe right” know only too well how subjective this test is.

Although in a later case Lord Nicholls further articulated the strands of fairness these soon fell apart when clashing with reality. Unfortunately, this has not stopped advocates continuing to insist that every proposal they issue is based on fairness. Often the husband will say that his proposals will achieve fairness. The wife often responds by saying that the husband hasn’t recognised her needs and has put forward proposals that are not fair. In contrast she will say her proposals achieve fairness and so should be accepted. It is exceptionally rare for any judge who is determining a final hearing to accept one party’s proposals over the other. Nearly always the award will rest somewhere between the competing proposals. To reassure the parties the judge will say that they have balanced all the relevant factors and the award has achieved fairness! Three people, three different views, all claiming the same thing.

It is time to stop using this empty vacuous word. It does not help and it certainly does not help people achieve settlement more quickly. It is time for all advocates to set out much better reasoning as to why the proposals they put forward are the right proposals for the circumstances of the case and why they meet the statutory criteria.

In mediation I always try and get the parties to focus on the specifics as to what they want and why; drilling down to what things mean in real terms rather than focusing on a headline slogan of fairness. Indeed, if one thinks about it, the first time you probably heard the term fairness was in the school playground. How often in those days did we hear “it’s not fair” being screamed about even the most innocuous things. Sadly as adults all too often that phrase is used again without any objective analysis.

In mediation clients are guided through a journey as to how their future life might look and how their proposals impact their ex partner. ”Is that something you can live with?” is often a much better test than “do you think that is fair?” Rather than infantilising our clients and reminding them of the playground, let’s arm them with relevant facts and a series of future scenarios. Reality testing various outcomes and imagining their future lives is far more helpful than falling back on unhelpful and in my view redundant language. If it were up to me there would be a swear box for every time the f word was used.