Family courts: going against tradition

Last week saw family practitioners promoting non-court options to mark Family Dispute Resolution Week (23-27 November), with this year’s motto being ‘putting children first’. So it is an appropriate time to take stock of the differing attitudes within the profession towards these approaches.

Many might think it a bit of a ‘no-brainer’ that we should be guiding clients away from the stress and expense of court battles and encouraging them to put their children’s needs first and settle matters amicably wherever possible.  

However, there are still aspects of the system that stand in the way of this becoming a reality for many clients. For example, in most divorce petitions it is still necessary to place fault with the other party. The system for resolving private law family disputes is still, at its heart, an adversarial one and the reality is that there are also some practitioners who continue to behave in such a way (whether consciously or unconsciously) that tends to exacerbate disputes and polarise separating couples.

We have a responsibility as family lawyers in terms of how we behave, given that we see clients on a daily basis who come to us in a vulnerable state, having been hurt by their former partner’s behaviour. The ‘path of least resistance’ is to become embroiled in judgement and criticism of the other partner. Some lawyers also make assumptions such as ‘well, if he lied to you about a relationship with someone else then how can you trust him in relation to the money?’.

While this protective approach towards clients can help them feel like their lawyer is ‘on their side’, it is not necessary to go this far to develop an alliance with a client. For example, the standard (and effective) approach in the therapeutic profession would be to empathise with the client, but also to retain that crucial level of objectivity and challenge the client’s beliefs; identifying the client’s ‘part’ where problems have occurred rather than just focusing on the shortcomings of their ‘ex’.

Those who advocate the more traditional court-based approach to dispute resolution take the view that mediation and collaborative law are inappropriate where there is a risk of one person failing to disclose assets. This is based on a premise that the disclosure process in mediation is more ‘lax’ than the court or solicitor negotiation route.

However, I would question this given that many mediators (myself included) insist on full disclosure of all financial information and documentation, and continue to ask questions until satisfied that the financial picture is sufficiently clear. In contrast, in those cases that do ‘fight’, clients often simply cannot afford to continue to ask question after question (through expensive lawyers’ correspondence or court proceedings) to get to the ‘truth’. So it is by no means a given that an accurate picture of the finances is easier to get to through litigation.

Some criticise mediation for its voluntary nature and the non-binding nature of the outcomes. However, even in those cases which do ‘fight’ and where there is a ‘binding’ court order, actually enforcing that order can be tricky and expensive. It is particularly rare for a parent to obtain redress where the other has breached an order about children’s arrangements, so clients could be forgiven for taking the view that ‘binding’ may not be an entirely accurate description of such orders.

The culture of family law continues to change and it has to. It is worth holding up to the light some of the traditional (and somewhat outdated) criticisms of non-court options and discarding those that no longer resonate. As family lawyers, our job is to guide clients towards options that have the greatest chance of achieving the ‘least worst’ outcome for them (both in an emotional and a legal sense). For many people, avoiding the traditional adversarial approach is going to tick that box.

Annmarie Carvalho is a solicitor and mediator at Farrer & Co. She is also training to be a humanistic integrative counsellor