Practice Made Perfect – The Skills and Sensitivity of a Family Law Specialist
This was the closing address made by the President at the Family Justice Practice Forum 2017.
The Honourable Judicial Commissioner, Valerie Thean PJ, Family Justice Courts,
Honourable Judges and Judicial Commissioners of the Supreme Court,
Family Court Judges,
Distinguished Members of the Bar,
Delegates of the Family Justice Practice Forum 2017,
Ladies and Gentlemen
As the Honourable the Chief Justice Sundaresh Menon in his Opening Address shared with us this morning, the family law practitioner of today needs to have problem-solving skills both in and out of court room. Practising family law is a “deeply meaningful calling” as Chief Justice aptly described in his opening address. It is not a pure adversarial combat with one-upmanship and gamesmanship. The nuance is because a different sort of skill set and sensitivity is required when managing the most delicate and intimate relationships that a human can have. His or her marriage and family. If the family is a building block of society, when disassembling this building block, special care and caution is needed. If not, the disassembled family could become a potential stumbling block of society.
In this closing address, I want to touch on two skills and two sensitivities required of a 21st century family law specialist. Much more can be said and written on this and so I cannot do full justice to this topic as a comprehensive piece. I share this as one who has made the occasional foray into family law cases and has thought a little about the issues. But I will not pretend to have the indepth knowledge expertise of the stellar family law specialists in our audience.
- Collaborative Family Practice
The first skill I want to speak about is Collaborative Family Practice. I know that I am preaching to the converted in this respect but it bears reinforcement.
The Honourable CJ Sundaresh Menon made reference to lawyers as peacemakers. There is great wisdom in this role. More than 150 years ago, Abraham Lincoln said:
“Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.”
Collaborative Family Practice (“CFP”) is a valuable role for lawyers to be peacemakers. It is an interest-based approach to untangling matrimonial discord before the start of any court proceedings. In the words of Michelle Woodworth, Chair of the Family Law Practice Committee, CFP is frontloaded and non-tactical.
With the support of the Family Justice Courts of Singapore and the Law Society of Singapore, the CFP service aims to help disputing couples reach an agreement that both sides can live with, preventing bitter lawsuits.
Specially trained CFP lawyers and other family specialists (such as financial advisers and child experts), work with the parties to negotiate a bespoke agreement that suits the family.
A unique feature of this process is that CFP lawyers cannot represent their clients in future litigation if settlement is not reached. This gives a greater incentive for feuding parties and lawyers to settle all their disputes in a holistic way. As a result, there is a real commitment to helping the parties reach a settlement.
Unlike matrimonial legal battles, CFP is a much less stressful and less hostile process. It allows parties to be civil towards each other, which is very important if they have children. The process is confidential.
Members of SMC’s Panel of CFP Lawyers are practising family lawyers. Many are also accredited SMC mediators with specialist training. The Law Society launched our LSMS scheme. We now have a greater pool of mediators who are eager beavers in their mediation journey. Together with the leadership of the Family Law Practice Committee, we will develop a bespoke and nuanced mediation training to better equip our family law mediators.
The beauty of collaborative family law practice is that it is voluntary and consensual. It won’t be forced on or foisted on parties.
I would add the following. From experience in a few matters, there is a wisdom about pre-agreeing ancillary maters even before reading the breakdown allegations are made. In one case. where I represented the plaintiff wife, together with a collaborative family law practitioner on the other side representing the husband, we settled the ancillaries even before divorce papers were filed right down to the teddy bear collection. The emotional temperature would have been very different if we had had the same conversation after the divorce papers were filed.
(b) The second skill I want to touch on is collaboration with other multi-disciplinary practitioners. I will never forget watching anecdotal examples of seeing both the counselling skills and legal skill work in tandem in a pro bono clinic setting. In one example where a lawyer and counsellor were present, five minutes into the legal consultation session, it was clear that the client was exhibiting signs of depression. So the lawyer stopped and the counsellor began. It is humbling to know that law is only one facet. Law is part of a holistic solution.
Multi-disciplinary partnerships with therapists, social workers and counsellors will be a safety net to an individual mired in divorce proceedings. This is team work that makes the dream work: the dream of restoration and healing for the broken marriages and family.
This last week, I was attending the World Justice Forum at the Hague organised by the World Justice Project. They are an independent, multidisciplinary organisation working to advance the rule of law worldwide. There is a global and growing recognition that rule of law is not just for lawyers but non-lawyers. Multi-disciplinary partnerships can lead to more effective justice outcomes.
Even though multi-disciplinary practices may be some way off, I envision a day when law firms “partner” with psychologists, counsellors. We could run a pilot project involving certain boutique family law specialist firms. For Law Society members present, if you think this resonates with you and your practice, please drop a line to Law Society’s Director of Representation and Law Reform, K Gopalan.
It is not just about skill but also sensitivity.
(a) First, the sensitivity in counselling and communication. Lawyers are “counsel” in more ways than one. This is not inconsistent or contradictory with the point I just made about collaboration. There will be cases requiring multi-disciplinary expertise to attain an optimal resolution. As seasoned family law specialists present will attest, for many cases, basic counselling skills are a must. This is part of what Minister Tan Chuan Jin meant about specialists with deep expertise. It is both pragmatic (as we have more supply than demand for counsellors in the social service sector) and also practical. We need to look beyond words and discern the emotion. When we can decode the emotion involved – unforgiveness, anger, fear, depression, etc, it is easier to understand the client’s given instruction but also to slip in a word sideways on addressing the root of the issue. This is so even if the lawyer is not a qualified counsellor to journey with the client through the emotional phases of his or her justice journey. It’s important to have our emotional antenna up. If not, the danger is we will ventilate instructions that are in substance nothing more than our client’s emotional placation.
Lawyers need to master their primers on listening skills. In particular, listening to understand and empathize. For the junior lawyers in our midst, if this exercise of empathy is not easy, I ask you to think of a family member, relative or friend that underwent or is undergoing divorce. Think of the impact on them based on what you have observed and your conversation with them. Keep that image or discernment with you the next time you meet a family law client. You will find that there is a commonality about the emotional experience that will humanize your client for you.
Chief Justice Robert Benham who served as Chief Justice of the Georgia Supreme Court in a speech in October 2005 at the International Association of Collaborative Professionals pointed out that doctors heal the body and lawyers heal community. And I invite us to reflect on this model of family lawyer who is not only peacemaker (as Chief Justice Sundaresh Menon exhorted us) but also healer.
I would reiterate that we need to be sensitized not only to the justice journey of each individual but to the emotional aspects of that part of the justice journey. By this I am not venturing to say to lawyers present that you displace or replace the counsellors. For one, you would be a very expensive counsellor and for another, probably an ill-equipped one!
But there are practical cues and clues that we could pick up about clients to ensure not blindsided about how they are feeling. Are they meeting or e-mail persons? Are there temperament or personality differences between the clients? By sharing their narrative, this could be a type of narrative therapy for them. We could ask the right questions about their narrative that could be helpful for the client in processing how they feel.
Part of the sensitivity should cross over into the communication via our letters and e-mails. Once again, I appreciate that am preaching to not only the converted but the convicted in this regard. I strongly believe that in family law practice, we should not add to the acrimony in our conduct of the litigation and stoke the fire with every letter. This does not mean going soft or doing a disservice to the client. We can be fair, firm but sensitized to the emotional barometer of other party. These were after all parties who once loved one another. Although there may be a revisionist tendency or a view through a pessimistic lens, in the vast majority of cases, an objective perspective recognises that it cannot have been all bad or all black. There were likely sweet remembrances of the union (often time the children whom we heard much about this morning from Minister). These remembrances will form part of the treasure trove of memories until their dying day.
The sensitivity in communication would also apply to what we say about another lawyer and the courts. Our opponent is not the “Lawyer from Hell” nor is the Judge from another planet. There is an old and wise adage that if there is nothing good to say, don’t say anything at all. We need to adopt an ethos about our communications relating to the Court (even if there is a place for legitimate critique of the Court’s decision) as well as of the other party.
Finally, a word of caution for family law specialists who embark on this journey of counselling. There is also a need for self-care and drawing healthy boundaries. We have read local cases in which family lawyers transgressed ethical boundaries in representing matrimonial clients. I will not be sanctimonious about this. Any one of us at the wrong time and wrong place could be vulnerable. But it behoves us to wisely maintain healthy boundaries e.g. having a colleague present, not having a meeting alone with the client late in the evening, etc.
- Finally, let me end off with a contribution from the Bar. The cross-examination of vulnerable Ws (with a special focus on children)
The Law Society is developing guidelines for vulnerable witnesses. The raison d’être for this is a recognition that we need to enable vulnerable witnesses give their best evidence in court and ameliorate some of the stress associated with the giving of such evidence. Let me give you a preview of prototype for children – one class of vulnerable witness – based on draft guidelines which the Law Society Secretariat has come up with to date: see Annex to this Speech.
This is a quick snapshot of some of the guidelines to come. But it is also an illustration of the sensitivity needed of the Singaporean family practitioner.
In conclusion, family law practice is one of the best practice areas to develop multifaceted skillsets. It is also one of the best practice areas to develop empathy.
Minister Tan Chuan Jin spoke of the generational impact of divorce. I believe in time to come, many more longitudinal studies will add to the growing evidence.
A famous pop song by Michael Jackson in the early 1990s begins with a child’s voice saying: “Think about the generations and say that we want to make it a better place for our children and children’s children so that they know it’s a better world for them. ”
We can each heal the world and make it a better place. Each of us (especially the lawyer healers) are uniquely placed to heal Singapore, one family a time. May that vision and the accompanying wisdom we have gleaned from today’s Forum be our guiding light.
- Adjust your pace of questioning to the child’s needs. Some children may need more time to process information before answering your questions. Be prepared to pause during questions and to allow breaks of about 10 minutes as the child should not be expected to be able to withstand questioning for long periods. To keep the cross-examination useful consider the following:
- Questioning should be based on the child’s concentration span;
- Children’s concentration span is generally shorter than that of adults and some have specific difficulties with attention.
- Make sure the child understands the question. Be alert to possible miscommunication. The child may try to answer questions even when he does not fully understand the question. Do not rely on the child to say he does not understand the question.
- Plan questions in topics and be clear about changes of topic as this helps the child make sense of the process and focus on the subject. For example:
- Introduce the topic by saying “Now we are going to talk about …”;
- “We have finishing talking about what happened on ____. I want to talk about what you did the next day”.
- Follow a logical and, preferably, a chronological order.
- Ask each question once unless there is a good reason to repeat it. Phrase your question such that the child is able to understand the question. Generally repeated questioning will reduce the child’s overall accuracy. Recognise that the child sees you as a person in authority. Anxiety, combined with a desire to please someone in authority can cause some children to change their first answer, regardless of its initial accuracy.
- Ensure your tone of voice and body language are neutral and maintain attention because the child needs to know that you are speaking to him and listening to him. Some children can be particularly attuned to your facial expressions, tone of voice and body language. Helpful techniques include:
- Regularly using the child’s preferred first name instead of calling him “witness”;
- Maintain eye contact as far as possible;
- Non-verbal responses such as nodding or shaking your head or looking up at the ceiling as in disbelief can cause misunderstanding, compliance or acquiescence.