Resolution Together: avoiding professional negligence risks
Even with strong protocols and training, Resolution Together (dual representation in divorce or separation cases) carries inherent risks that demand early recognition and consistent control. Proactive safeguards, applied and documented from the onset, are essential for protecting trust, meeting regulatory and ethical standards, and securing effective outcomes for clients, writes Lockton
Resolution Together (RT), also known as ‘one couple, one lawyer’, came to fruition in 2022 — allowing a single lawyer to advise both parties in a divorce or separation. A new model of working at the time, RT promotes fairness and transparency, avoids court proceedings, and gives greater confidentiality to those involved.
But dual representation remains a risk. While ‘one couple, one lawyer’ may satisfy the SRA’s ‘common purpose’ requirements, efforts can still be flawed, as emotions might be suppressed or details overlooked in pursuit of a quick separation. These issues can resurface later — perhaps when finances are tight, family dynamics change, or whenever the agreed outcome begins to feel unfair.
Should this happen, attempts to explain your neutrality may fall on deaf ears: justified or not, you could face professional negligence claims.
A three-tier approach to RT risks
A structured risk management strategy can help you realise the benefits of RT, while protecting against claims. We’ve put together the following three-tier approach, bringing together model-specific risk controls, firm-wide risk management protocols and targeted mitigation for known vulnerabilities.
Tier 1: Resolution Code of Practice
The Resolution’s Code of Practice sets out generic risk and quality controls for the delivery of RT services. It aims to ensure a constructive approach that considers the needs of the whole family, and uses language throughout all communications to supports that aim. As part of the Code, RT practitioners are required to:
- Adhere to the guidance in the Resolution Together handbook.
- Follow the various good practice guides, guidance notes, templates, and other resources available which embody the code’s objectives.
- Maintain their professional development, accreditations, and networks.
- Use the complaints handling toolkit when issues do arise.
Tier 2: Adapting your existing risk management framework
Most firms will already have established policies and procedures designed to manage risk and safeguard against professional or regulatory breaches. By embedding RT considerations into this structured framework, firms can ensure that the model benefits from the same rigour applied to other high-risk matters.
This may involve:
- An automatic high or higher-risk rating for all RT matters, which are notified to risk and compliance authorities for approval before any joint meeting takes place.
- Specific, pre-agreed risk management controls for RT matters, like more frequent independent reviews or additional risk control gates.
- Clear identification of RT matters in records and file listing.
- A minimum of two fully trained RT practitioners to enable effective peer review, absence cover, and mutual support.
- Use of experienced advisors with the risk awareness to spot red flags.
- Support staff trained on RT principles to handle communications and raise concerns.
This should be underpinned by the application of relevant regulatory principles around conflict management, confidentiality, privilege and information security.
Tier 3: specific mitigation for RT risks
Even with strong protocols and training, RT carries inherent risks that demand early recognition and consistent control. Proactive safeguards, applied and documented from the onset, are essential for protecting trust, meeting regulatory and ethical standards, and securing effective outcomes for clients.
| Area of risk | Risk mitigation |
| 1. Conflicts of interest | · Conduct conflict checks on the parties and closely related stakeholders, like family members, to rule out existing relationships with the practice or RT advisor.
· Retain evidence of all information provided, including your explanation of strict neutrality. · Have a transparent, pre-agreed plan in place to manage any actual or perceived impartiality and implement it swiftly, when required. · After the agreement, ensure no communications take place with either party outside of the discussions including both parties. · Undertake an independent review by a senior person or compliance officer and end the process if deemed to be a conflict.
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| 2. Misunderstanding of neutrality | · Clearly explain the RT model and use model documents to obtain both parties’ informed consent.
· Require any changes to the content of retainers and agreements to be approved by a senior person with knowledge of RT. · Ensure continued understanding of dual representation throughout the matter life cycle, and repeatedly obtain consent before each meeting. · Document all advice, options and implications explained and decisions made. · Pause to allow both parties to take independent legal advice if deemed helpful.
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| 3. Safeguarding | · Hold initial screening meetings with each party to assess them against agreed inclusion criteria.
· Use a standardised checklist to apply these criteria consistently. · Ensure screening is conducted by qualified personnel able to pick up on any form of power imbalance. · Remain alert to behaviour changes throughout the matter to ensure the continued suitability of both parties. · Develop and update a list of red flags to strengthen vigilance.
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| 4. Transparency | · Make openness, collaboration, full disclosure, and waiver of privilege an essential part of the initial suitability assessment, with advisors trained to spot contrary signs.
· Once informed consent is given only allow joint meetings, discussions and documents – with no side conversations that could lead to claims of bias. · Develop a timetable for disclosure, allowing parties time to reflect, take independent advice, and ensure the RT model remains suitable. · Ensure all considerations and advice to both parties is non-positional. · Keep a full record of all meetings, discussions, and correspondence, and ensure the file settings allow for open sharing and independent review.
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| 5. Breakdown
of process |
· Abide by the model protocols, documents, and agreed risk controls for your RT service without deviation.
· Use specialist third parties where necessary, including independent financial advisors, pension experts, etc. · Conduct ongoing risk monitoring to ensure any decisions made are aligned with what the courts would consider fair. · Address red flags early, provide written ‘warnings’, and monitor closely. · Agree a dissolution protocol at the outset to prepare for referral to independent legal advice (or other dispute resolution method). · Once a conflict arises, do not act for either party. · If the RT model has been deemed unsuitable at an early stage, define under what criteria a party may still be represented. · Incorporate lessons learned from process breakdowns into subsequent management processes, for example,via an annual review.
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