12 Nov Lawyers “fuelling family conflict”
Written by Bev Clark
I am very pleased to read the article in The Australian Newspaper on 31 October 2018 with the above heading.
It was pointed out that a family law Judge has hit out at “horribly aggressive lawyering” driven by profit that is driving up costs in divorce proceedings and fuelling conflict between parents.
Whilst it was highlighted as occurring especially in Sydney, it is my view that this also occurs in other states, including Adelaide. Lawyers are traditionally trained to be gladiators for their clients and to fight for their clients desires. It has always been the view at Belperio Clark that a gladiator approach is unhelpful. We prefer to see ourselves as lawyers acting as wise guides for clients when they are going through the worst time in their lives. Our philosophy mirrors the concern that has been raised by Federal Circuit Court Judge Harman. To quote Judge Harman “their job (meaning the lawyers) is to be problem solvers, to help people find resolution of conflict, rather than to generate conflict, to fuel it, to create it where it didn’t previously exist”.
In a book released by mediator Zoe Durand entitled “Inside Family Law” recently retired Federal Circuit Court Judge Scarlett highlights a difference in culture between family lawyers in Melbourne and Sydney. “The Sydney registry was much more aggressive and combative. Judges from other states that come to sit in Sydney used to comment that they “needed to put on a helmet and a flak jacket just to go and sit in Court” he said. Judge Harman felt that lawyers had become “aggressive mouth pieces” rather than advising clients what would actually happen in Court – that even if they won, they would still lose because of what it would cost them in time, money and broken relationships. Retired family court Judge Rose, who was also interviewed, criticised some solicitors for a lack of knowledge, and for being poorly prepared. He said plenty of “bad litigators” seemed to “fall in love with their client’s case” – doing their client a disservice.
Erica Panagakos and Bev Clark, from Belperio Clark have both just returned from the International Academy of Collaborative Professionals Forum in Seattle. Bev attends this international conference every year and has done so for the past 10 years. We remain firmly of the view that a Collaborative approach, whereby parties’ own interests and concerns are at the forefront of the negotiation which is conducted by Collaborative professionals who undertake not to go to Court and instead direct 100% of their expertise and energy to finding resolutions for families, is without doubt the most appropriate approach for resolution of family law matters. Collaborative professionals consider themselves to be engaged to assist parties to find a resolution that addresses their own needs and interests without threats of Court, and without positional bargaining. They assist their clients to work through any dispute, recognising that if the needs and interests of both parties are not taken into consideration then the chances of a settlement is highly unlikely
Collaborative practitioners are well aware of, and help their clients to understand, the damage that parental conflict has on children. We help parties to work towards solutions that will enable them to continue to co-parent their children and have a respectful relationship for each other in the future. This opportunity is largely lost when people proceed into a litigated, adversarial arena
Belperio Clark regularly conduct free information sessions at our Sturt Street office to assist parties to understand alternative approaches to litigation. We consider ourselves to be different to other practices and we are proud of that.
For more information on Collaborative Practice and Alternate Dispute Resolution generally, please visit our website (www.bc-lawyers.com.au) or contact us on ph: (08) 8212 1322 to book a place at our free seminar, or to speak with one of our experienced family lawyers and Collaborative practitioners.