Family Lawyers – Friends or Adversaries
This year’s Family Justice Practice Forum titled Family Practice – A calling of Kindred brought policy makers, social work professionals and lawyers closer together as a multi-disciplinary family working to support families. Minister for Social and Family Development Desmond Lee touched on two important areas in family practice in his keynote address – therapeutic and restorative justice. He also added another role to family lawyers – first responders.
I am fascinated by how we can provide these forms of justice to families. Family law practice has evolved from full form adversary to a non-adversarial system. Statistics has shown that about 53% of divorces are filed as uncontested. This does not include about 80% of divorces which are settled in court mediation. So, the adversarial divorces probably amount to about 20%.
The question of whether the day will come when there will be non-adversarial divorces only was asked at the Forum. There will always be space for family litigation, albeit a very limited one in the future. Family litigation does not need to be adversarial in the way lawyers correspond with each other and add more acrimony faced by parties in the manner advocacy is conducted in Court.
This has been raised by many in our national newspapers as to whether lawyers make divorces more acrimonious for their clients. The answer is a qualified positive. Firstly, there are clients who want to be adversarial because of the emotional state they are in. They are not ready to consider amicableness. Their lawyers, even if they wish to be non-adversarial, have to comply with the client’s instructions, or else risk the loss of the client’s business. Traditional family litigation is still the mainstay of family lawyers as it is seen by them to be a more certain and important rice bowl.
The number of family lawyers being trained as mediators, collaborative family practitioners, child representatives and parent co-ordinators are increasing every year. This has seen a rising number of family lawyers who had adopted a non-contentious family law practice. However, there is still a need for a major mindset change within the family bar to fully embrace non-adversarial family law practice. The reason for this is because non-adversarial family law is still in its infancy and such a practice does not bring as much bacon to the table as litigation does. Family mediation is slowly taking root in family law practice but still insufficient to make a lucrative living from. This is due to the Court mediation and the mediation provided by the Singapore Mediation Centre. For non-adversarial family law practice to thrive, there must be sufficient alternate dispute resolution work in the form of private mediation and collaborative family practice.
The growing pool of lawyers trained as family mediators and collaborative family practitioners would also have to find their own work to establish alternative dispute resolution practices. Different marketing strategies will have be implemented to attract such business. The lawyers, in their first meeting with their clients, have to lay out the buffet of options for the clients – negotiation by parties or by lawyers, collaborative family practice and finally litigation. The client, with such advice would usually be hesitant to resort to litigation as they would not want to waste time and money in litigation.
It is welcoming news that couples have to attend mandatory mediation and counselling before they can file for divorce. This will allow couples to resolve the divorce and ancillary matters fully or partially before they file for divorce. Although the details on how this scheme will be implemented is not known yet, the Ministry of Social and Family Development and the Ministry of Law can open up the mediation services to the pool of family mediators so that they can establish non-contentious family law practices.
If clients are able to settle the divorce amicably through court mediation, why are they not able to do so before filing for divorce or without court mediation? There are several reasons for this – the client’s vulnerable emotional state, the level of advice given by the lawyers on the alternate dispute resolution options, and the ability of the lawyers to work together in a collaborative manner to assist their clients to achieve amicable divorces.
Mindful litigation may be a better form of litigation. This involves firstly lawyers involved in a matter being friendly and civil towards each other. The divorce is only between their clients. As family lawyers play a significant role in family proceedings, our duty extends beyond being subject to client’s instructions. Most clients do not want an acrimonious divorce. They may wish to vent out their negative emotions against their spouse by being difficult with child access or want a better financial outcome in terms of maintenance and assets division. Together with our opposing counsels, we can work together to achieve our clients’ goals harmoniously.
It would appear that the development of non-adversarial family law practice is in the hands of the lawyers and the policy makers. If both stakeholders collaborate and work together to help clients to obtain amicable divorces, then our society as a whole will benefit.