Obligations to minimise the negative impacts of the adversarial system

The current review of the family law system has focused attention on the limitations that lead to dissatisfaction with process and outcome in resolving family disputes. The many responses reflect different views, but there is a common theme regarding the adversarial frame that defines a dispute once it enters the legal system. This is destructive and inappropriate, particularly in relation to parenting matters. Professionals working in this area have a duty and a responsibility to keep families they are involved with, out of this system as far as possible, and if not possible to manage this journey in a way that will minimise the negative aspects.

 

Case Study

 

I recently had the rare experience for me, of representing a party moving through the court system. This has left me with many questions, and a burning need to urge my fellow family practitioners to think very carefully about the consequences of the advice we give and the way we represent our clients.

 

Background

 

There are many reasons why a matter ends up in litigation. Sometimes this is because one or both are not able or are unwilling to participate directly in decision-making, and require a structure that provides their family with an outcome. Other times, there can be an element of retribution and a need to punish, and a belief that the court system will provide justice and a fair way forward. On some occasions, there is a lack of proper assessment and referral, and matters end up in court without proper consideration of the likely impact of this on the family.

 

In the matter I am thinking of, there were some protective measures that required proper assessment, but these were acknowledged and there was a willingness to undertake necessary steps to provide appropriate assurances. Suggestions for FDR were not progressed, and unilateral decisions were made by one parent, that impacted significantly on the other parent’s ability to maintain a relationship with the very young children.

 

Correspondence

 

A very important tool of the lawyer is their ability to frame their client’s position so that this opens up opportunities for a dialogue, that will hopefully lead to some agreements.

 

In my time as a family lawyer over various decades, a solicitor’s letter in family law has changed significantly. When I first commenced as a solicitor, the language used and the threats that usually concluded letters, made these intimidating and very unhelpful. Occasionally I have seen a letter in the old style, but more often today correspondence includes simple and clear English, the message provided is straightforward, and consideration has gone into the intended audience, the impact of the letter, and whether it will advance the underlying purpose.

 

Let me call my client Adrian.

 

In Adrian’s matter the correspondence has arrived on my inbox on nearly a daily basis over about five months. The tone of this correspondence is positional, intimidating and often makes various threats. There is nothing conciliatory about the way that matters are expressed, and the language used is condescending and judgmental. They are extremely detailed and very long. They are repetitive, and make many assumptions about Adrian, taking on board everything that has been told to them, leaving no room for any alternate explanation.

 

Adrian has found this correspondence distressing. Any attempt by me to be conciliatory, positive, future and child focused, seeking to establish a dialogue that would promote a spirit of compromise, has been ignored. Adrian became despondent about his situation, and began to believe that the repeated accusations being made and the position taken by the other side may be inevitable. He started to doubt that I could help him.

 

This was a very destructive process for Adrian and his entire family. The parents were being driven further apart, and there seemed to be no consideration given to the fact that for the rest of their lives they would have to find some way to co-parent these children. I do not believe that this was a child focused and responsible approach for this family. I believe that as officers of the court, we have a duty and responsibility to consider the short, medium and long term consequences of our actions as solicitors on our clients, their children and their family overall.

 

One of the horrifying consequences for me as a practitioner, was that I found myself being drawn into the black hole of the adversarial system. My meditational, child focused letters were useless in such a situation. I had to reply with clear and simple messages, but keep these sharp and to the point, so that Adrian’s view of the best interests of his children was abundantly clear and he was sticking to it! This created inner turmoil for me as I do not see this as the best way for lawyers to practice.

 

Litigation

 

The conduct of the litigation followed very much the same path. One hurdle after another was placed in Adrian’s path as a precondition for him to have meaningful time with his children, and as he satisfactorily overcame one such hurdle, another would be placed in his path.

 

The court material was drafted in this vein and further entrenched the parents in their positions. This emphasized the gulf between them rather than allowing them to explore how a bridge might be built from one side to the other. Rather than supporting the weaknesses that either parent may have, so that the children could benefit from their strengths in a structured and protected way, these were amplified by the court process, and left Adrian feeling victimised, and the children deprived from enjoying a continuation of the very strong and loving bond they had with him.

 

The only suggestion for mediation that would be seriously considered by the other side, was to be conducted by barristers, who I know are very good advocates, but are not registered FDRPs. The costs for this litigation intervention mediation, was many thousands of dollars and completely out of proportion to the income and assets of this family.

 

There are many different options for supported negotiations that could have been considered in this situation. A roundtable conference with lawyers could have provided a cost effective and supported method to explore options and the possibility of compromise. There are many types of FDR that could have been canvassed, with direct or indirect support of lawyers.

 

I believe that we have an obligation as practitioners to look outside the box, and come up with suggestions and recommendations that meet the unique needs of each family. It may be that the lawyer in this matter was not aware of the options outside that of what she had used in the past, being lawyer assisted negotiation. But there are many different pathways, and an opportunity to move a family out of the court system should never be missed!

 

Obligations as lawyers

 

For me, the role of a lawyer is a crucial one. We can reframe our client’s narrative, to set the scene for some flexibility of thinking, and the development of skills that will allow for life in the future as separated parents. We can provide a process that facilitates the parents working together, whether directly or indirectly, to maintain control over the decisions that need to be made for themselves and their children. We can ensure that they have the supports and information they need, and the structure that promotes their strengths as parents, and enables them to co-parent their children into the future.

 

We need to look beyond the instructions we receive from our clients and appreciate that there are always at least two sides to every situation. We must remain professional, be objective, realistic and above all pragmatic.

 

We have a duty to the court to consider whether a matter is appropriate for litigation, and if there is another option, then this must be pursued. The courts are clogged and cannot give the matters that desperately require a judicial determination, the appropriate attention. The judges become frustrated when matters are before them that could be dealt with in another way, and appreciate an action plan that gives parties the ability to move outside their system.

 

We also have a duty to our clients and above all the children in every family we work with. We must minimize the costs of litigation, and in particular the emotional, psychological and health costs. We should always consider the big picture, and realize that although we may “win” at an interim or final hearing, the family must move past this point in time- they may have an outcome, but not the necessary skills to take hold of this outcome and make it work for the family from then on.

 

Finally, I realise from working with Adrian, that there is a significant cost in working in this way for us as practitioners. The uncertainty, negativity, and stress associated with this approach has a profound impact that permeates all levels of my being. We cannot avoid some of this approach occasionally, but we can all work to doing our job in a different way that avoids this as much as possible.

If you have had a similar experience, I would be grateful to discuss this with you and learn what strategies you tried and which were successful. Please do not hesitate to contact me.

 

 

 

 

 

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