By Rajan Chettiar, PracticeForte Advisory Affiliate
“You are too nice,” he said. “How do you want me to be at a mediation?” I replied. “I am worried,” he said. I had given an assessment of the outcome at the mediation to him. “If you are worried, I cannot do anything for you,” I replied. This is an exchange I had with a client recently who wanted adversarial conduct during a mediation.
If being non-adversarial is a cause for complaint in family proceedings, then we cannot fault lawyers who are litigious during mediation or in Family Court proceedings. The complaints of lawyers’ conduct in court proceedings, the role they play in increasing the acrimony between parties by encouraging their clients to be litigious by filing a multitude of interlocutory applications is not a fair one then. The duty is then not only on lawyers to be amicable; the burden falls equally on the clients.
The recent recommendations of the REFF Committee on promoting non-adversarial family proceedings need to be extended to creating public awareness of amicable divorces. Non- adversarial proceedings in the Family Justice Courts will only become a norm if clients choose amicable divorces over contentious divorces.
The most welcoming recommendation by the committee is the extension of the judge-led approach. Though not a new recommendation, the hope is that our Family Court judges will exercise this approach with more rigour and no fear against litigants in person. Currently litigants in person are perceived by the Bar to be treated lightly by the Court which gives them courage to be unreasonable and rude to counsel. Recently I was involved in a long hearing with a litigant in person; she was extremely rude and continued to berate me in court. A senior Judge just told her to tone down her manner which did not have any effect on the lay person who continued with her behaviour during the hearing which spanned over three days.
I am heartened to note my advocacy for pre-mediation and counselling before a spouse files for divorce has now become a reality. The effectiveness of these much awaited measures lies in its implementation.
The future of family law practice is undergoing changes. There is a big move to help litigants who are unable to afford legal fees to obtain divorces. Schemes will be rolled out to help these needy litigants. This may affect family lawyers’ livelihood. Yet, this class of litigants may not be able to afford lawyers in the first place. Though I appreciate the concerns, are we as lawyers overreacting? As clients often tell us, we need to think out of the box and adopt new strategies in providing our legal services.
I have been a full- time family lawyer for 17 years out of a 23-year law career. I concentrated on family practice as I wanted to use law to help people. The practice has become competitive with many more firms now focussing in this area of law. It has become demanding in terms of ever changing court processes and different types of demands from clients. Clients expect their lawyers to understand them better, often to even know their unspoken thoughts and concerns, be vocal, be aggressive and outbeat their opponent counsel. They often talk about strategies and being fully aware of processes up to the minute. Many want to be actively involved in the administration of their matter.
Lawyers choose family law practice because of love for the law and a wish to help couples and children. I find many members of the Family Bar protecting their clients’ interests a little too seriously. They become personal towards the opposing counsel. They are at times unnecessarily aggressive towards opposing counsel. Sometimes I wonder whether it is their own divorce they are fighting for. How do these lawyers forget their previous persona and become friendly towards their opposing counsel in social situations? I find this behaviour strange and I am unable to change my personality in the way that others easily make the switch. Are we, family lawyers, chameleons?
There are other lawyers who consistently use the cloak of clients’ instructions to pursue aggressive family litigation. The practice of family law is a business but at the same time it is different from other areas of law where families and the future of children are affected. If clients, against sound legal advice, decide to litigate and can financially afford to do so, this is different from lawyers encouraging clients to litigate and file a sleuth of interim applications in addition to divorce proceedings.
Although mandatory mediation in family proceedings have been implemented for some time now, there are lawyers who will hint at litigation at the first opportune moment during the first round of mediation.
The first question many family lawyers ask at the first client meeting is, who are the opposing counsel and then proceed to advise the client on how the opposing counsel will conduct the matter and advise on legal fees accordingly.
Besides promoting amicable divorces, amiable advocacy should be encouraged in the Family Bar.
At the end of the day the question is whether we feel we have done an honest day’s work and can have a peaceful sleep.