I DON’T WANT TO GO TO COURT – WHY SHOULD YOU!
For the last few years of my family law practice (spanning over 25 years) I have been struggling to reconcile my desire to assist my clients resolve their matters with the usual negotiation methods most commonly used by family lawyers. My legal training requires a mindset that resolution of disputes must be achieved through notions of rights based outcomes i.e. Legal based outcomes – “What am I entitled to (by law) outcomes.” The reality is that often how we achieve outcomes is often more important than the outcomes themselves.
A rights based approach just does not deliver what I believe is in the best interests of those involved in family law disputes or for that matter, any dispute. Don’t get me wrong the world needs court litigators and not all matters are suitable for mediation or collaborative law or can be negotiated, but it is only a small proportion of matters that really require an outcome determined by a judge or arbitrator.
The better way to resolve issues is to promote self-determination through dispute resolution processes, particularly mediation (family dispute resolution) and collaborative processes.
I read how a US mediator/lawyer had made a decision some time ago about no longer acting as a litigator, described by one lawyer/mediator as a “peacemaking” lawyer/mediator. Dispute resolution methods aren’t just about mediation; collaborative law can be just as helpful with the right collaborative lawyers involved.
So how can I possibly achieve my goal of not acting for clients in contentious court matters but at the same time assisting them to achieve desired outcomes?
Well a little explanation first. Besides going to court, family lawyers routinely draft and file consent orders and financial agreements about property and children in the Family Courts. Whilst I am an accredited family law specialist I am also a Nationally Accredited Mediator and registered Family Dispute Resolution Practitioner under the Family Law Act and last but not least a Notary Public.
The outcome is that my personal legal practice does not need to incorporate traditional lawyering methods nor does it require me to routinely appear as an advocate in the courts or otherwise represent my clients in the courts. Others in my law firm can act for clients who just want to go to court.
Who will engage me then if I won’t go to court?
Well, less than 5% of matters filed in the Family Court system are actually finalised by a Judge’s decision. Those that do make it to trial are routinely resolved by negotiation between the lawyers for the parties on the day of trial. So the reality is that there is no real need to even commence court proceedings in 95% of cases. Don’t forget the many thousands of other matters that don’t event make it to court because they are settled by mediation, collaborative law or negotiation.
I find that people think they want to go to court and get “justice” but at the end of the day everyone just wants resolution.
Why don’t I want to be involved in the courts decision making?
Simply the mindset of a litigator (a lawyer that goes to court) and a “peacemaking” mediator/collaborative lawyer are quite different and the paradigm shift to the latter is necessary in my view to become the best mediator, collaborative lawyer and negotiator that I can be.
In The New Lawyer, 4 Julie MacFarlane identified the three professional beliefs that are the bedrock of traditional lawyers’ thinking: – a rights-based orientation, a confidence that courts will produce the best justice for clients, and a mind-set that lawyers should be in charge. MacFarlane finds that these beliefs result in a system that is not only inefficient, but also creates a disempowerment of clients in favour of their lawyers:
“A rights-based model of dispute resolution assumes that lawyers acquire some form of ownership—not simply stewardship—of their client’s conflicts as a consequence of their professional expertise. . . . Client goals are reframed where necessary to fit a theory of rights. This assumption of ownership by lawyers is both practical and emotional. Only certain types of client input, which are deemed to be relevant to building a strong legal argument, are sought.”
Experienced lawyers know the value of negotiation and mediation and understand their role when assisting their clients in the mediation process.
I don’t want to tell those involved in family law disputes what they should accept or not accept, I want to help them get to a point where they themselves can make their own decision. This will be accompanied by my advice in situations when I am not acting as a mediator.
My invitation to you
Why not let me explain the mediation process and the collaborative law process and assess which of those processes might be of the greatest assistance to you. You really won’t lose anything but some costs, time and effort. You can always go to court if it becomes necessary. What I am emploring you to do is not go to court unless and until it is really necessary.
Doesn’t sound like that’s what you want to do? Well consider this. I once issued an invitation to mediate for a party. The mediation did not proceed with the inviting party electing to make an application to court. He thought that would achieve a just outcome for him. He returned about 4 months later complaining about the court process and the costs he was incurring. He wanted to try mediation. The other party accepted and within 3 hours they had a resolution of their parenting arrangements with both being very satisfied with the outcome they themselves created. More importantly both were thankful that they were no longer in the court system.
It is common sense isn’t it! – I often refer to it as “common sense divorce”. You should try and resolve family law issues where it is appropriate to do so without court proceedings. In fact the Family Law Act not only encourages mediation but requires it in most cases regarding children.
There are very important exceptions where the following issues may prevent conducting a dispute resolution process – domestic violence, emotional and physical abuse of a parent and or the children, exposure to danger such as use of drugs and/or alcohol or where threats are made. In property matters there may be a need to protect the dissipation of assets or other reasons where applications to court are necessarily made. Even if it is necessary to go to court don’t forget to enter into mediation when that is appropriate. The courts will often order mediation before a trial proceeds.
All I can say that I have had many years of experience in a field where most individuals experience the impact of separation only once in their lives. If you have bothered to read this then there is a chance that you are considering resolution of your family law matter or other conflict without going to court. It’s what I am offering you – resolution coupled with an opportunity to move on and enjoy the rest of your life and that of your family.
 “Successful Law Practice Without Going to Court, Forrest S. Mosten
 JULIE MACFARLANE, THE NEW LAWYER: HOW SETTLEMENT IS TRANSFORMING THE PRACTICE OF LAW (2008).