There is a shift which is gaining momentum within Family Law in Australia.
Couples are looking for alternative ways of resolving their issues when they separate rather than the traditional notion of engaging individual lawyers and battling through to a settlement in a drawn our process of litigation. Some innovative and progressive family lawyers are starting to see that private mediation is better for the majority of their clients. This article was originally published on Mondaq, by Tim Couch, an expert in family law at Stacks Law Firm.
In the article, Mr Couch, who says "I am committed to achieving the best results for my clients in the most efficient and cost-effective manner possible," addresses his peers about encouraging their clients to explore mediation options before heading to court.
Family lawyers urged to steer clients towards private mediation
In the years I have practised in family law I have become convinced of the many benefits of private mediation for resolving property and parenting disputes. Private mediation enables couples who have separated to come to a fair, balanced and timely agreement about their future arrangements.
I would even go so far as to say that, except for the one or two cases I may get each year where the client walks into my office and says: “We’ve separated… we’ve agreed on the settlement and the kids… can you do the paperwork,” private mediation should be the first port of call when a relationship has ended and there is a need for a formal property settlement and parenting arrangements.
In my opinion, any family lawyer who genuinely wants to help their clients will encourage them to pursue this course, rather than to make a beeline for court.
Where possible, encourage your clients to look at court as an absolute last resort
If you are a lawyer who practices in family law – and this article is a direct appeal to those who do – you are probably already well aware of the drawbacks for the client of taking a case to court.
These include a lack of control over the process, often exorbitant fees and unprecedented delays before a case is determined at a final hearing, with consequent protracted uncertainty for the client.
By contrast, private mediation offers clients a far greater degree of control, far lower costs and, in the event that the mediation is successful, a much more timely and cost effective resolution.
Even if the mediation does not produce an ideal result in the form of a mutually acceptable agreement on the day, it has rarely been a waste of time. The matters that were in dispute at the outset have generally been substantially reduced.
Upon further reflection by the client, and further legal advice following the mediation, an agreement on any outstanding matters might still be possible without your client having to run off to court. But if not, there should be far fewer matters for the court to determine. Having less to resolve should mean spending less time in court.
Why do couples take their dispute to the Family Law Court?
In my experience, when couples opt to take their dispute to the Family Law Court, they do not always believe that this course of action will produce the best possible result.
Rather, warring couples can be motivated by anger and the desire to make their ex-partner suffer. It’s only human nature to long for vengeance in circumstances where a relationship sours and we feel rejected, slighted, humiliated or betrayed. It’s a natural response.
Sometimes the desire to keep fighting is not even motivated by concerns over unfair apportionment of money or property or time with children. Instead it can be based on an entirely emotional impulse which can border on obsession – for example, your client’s ex had an extramarital affair, leading to the breakdown of their marriage, and your client is determined somehow to “make them pay”.
Clients need to understand the inevitability of compromise
A client’s impulse to make their ex suffer, may be understandable but it almost always works against the client’s best interests. I do my utmost to make clients whose anger has eclipsed their reason understand that no court is ever going to give them everything they want while leaving their ex with nothing.
A court will always try to make decisions which are as fair to all parties as possible. What the client is really facing is a choice between two types of compromise – the first reached voluntarily, relatively quickly and relatively cheaply, with both parties having input into the details of the arrangements; the second being a court-imposed compromise in which all the details have been determined by a judge at much greater expense and after a much longer delay. And quite often, neither party is happy with the outcome.
Lawyers themselves can be an obstacle to private mediation
As I see it, clients wanting to fight their ex and make them suffer are not the only obstacle to private mediation. The other obstacle can often be the approach adopted by the lawyers they retain. Hand on heart, I have to say that some lawyers will not even bother to try to steer their clients towards compromise, preferring to sit back and allow the flames of hostility to burn in the knowledge that a protracted legal battle will generate far more legal fees for their firm.
Some practitioners are notorious for letting a family law matter unnecessarily drag on for months and sometimes years, before finally giving strong advice to their client on the steps of the court, on the day of the final hearing, to settle. In many cases, it is hard to think of a reason for such an approach other than the desire to drive up the legal bill.
Putting your client’s interests before your own
Yes, it’s true that if you encourage your client to attend private mediation and that mediation is successful, your professional costs in the matter will be less than from a protracted court battle.
But ask yourself, why did you become a lawyer? Was it altruism, so that you could use your legal skills and knowledge to help people in the most efficient and effective way possible? Or was it greed, so that you could extract every possible last cent from the general public, individually and collectively?
I appreciate that private mediation will not be suitable in all family law cases, and for a variety of reasons. This article is not written with such cases in mind. However, I think it is a fair statement to say that private mediation will be suitable in the vast majority of family law cases.
Family lawyers are unlikely ever to run out of work. Business will always be steady, if not busy. As long as the sun continues to come up in the morning, couples will separate and will need help to disentangle their lives from one another.