The paradigm shift in family law

Family Law|July 24th 2014

Family lawyers are not known for coming up with sexy phrases but the “paradigm shift” has to be one of the best (certainly better than that trips off the tongue phrase “relationship generated disadvantage”). It evokes memories of that late 80s US TV show Quantum Leap where the hero jumped through time experiencing different eras and often saving the day. So what is it all about?

The paradigm shift was a phrase I first heard when I was undertaking my training in Collaborative Law back in 2005. I was one of the first solicitors to undertake this course back then, when a new way to help clients resolve their issues on divorce and relationship breakdown came across the pond from the States. It was branded as a better way to divorce, a non-confrontational route, sitting around a table, two clients and two solicitors resolving issues through discussion, all committed to not going to court to resolve their problems. It was the next big thing in family law after mediation and required a solicitor not to fight for the best result for their client but to work with the other solicitor and both parties, working for the solution which would be best for the whole family.

A conventional solicitor has been trained to represent their client’s interests to the best of their abilities. They fight over the money their clients feel they need or are entitled to, and work for arrangements for the children which their clients feel are in their best interests. So what is the magic potion required to turn such a solicitor into a “collaborative lawyer”? The answer is a “paradigm shift” in approach.

The word ‘paradigm’ on its own sounds like a really interesting word doesn’t it? Perhaps it means something really special or exceptional. Sadly for a word which some might struggle to spell or to pronounce, it really only means “a typical example or pattern of something”. Anybody could use the word. It reminds me of the Gilbert and Sullivan song “I’m the very model of a modern major general” – a word that promises much in its presentation but then really fails to deliver in definition. Often the word in isolation is misused. However combine it with the word “shift” and it takes on a wholly different meaning. A ‘paradigm shift’ is a scientific phrase which refers to a revolution in a previously held perception or understanding. It is almost as if as family lawyers we have taken a quantum leap into a different place and time when we approach the representation of a client in a fundamentally different way. But is it fundamentally different when we look at the actual changes? I’ll give you some examples of how the paradigm shift should affect the way we act and let you judge for yourselves.

As a collaborative lawyer, it is expected, indeed it is required, that I change the way in which I approach a case. I am not there to advise my client alone, to give him (or her) any expectations of what a litigated outcome could be, what their best and worst case scenarios would be and how they should go about arguing their case to maximise their opportunities. Indeed the first change of approach is that it is rare to give specific advice to a client on the likely outcome of their case. Instead we seek to learn what our client hopes to achieve not just in terms of bricks and mortar, pounds and pence, but where they might want to see themselves in the future, their future relationship with their children and their former partner. Our enquiries are intended to learn about our clients wishes in a more holistic way.

Within an argument between two separating couples, each party will have their expectations of what they want to achieve, whether in terms of how they divide up their financial resources or what the arrangements should be for their children. They will have their own perceptions of what they think is fair but they will seek advice from a lawyer in the first meeting and base their expectations from that initial advice. One party might feel that they should keep the house, one parent might feel that the children should always spend Christmas Day with them. As a lawyer, we can advise our client about likely outcomes based on a wealth of experience and training and we can argue vehemently for what our client wants and whether we consider their expectations to be reasonable or not. Inevitably family lawyers will act for both husbands and wives, fathers and mothers and so we often find ourselves arguing both sides of a case for different clients in similar situations. We do so without hypocrisy because there is rarely a single answer to a problem.

Our role as a lawyer becomes one in which we are simply trying to protect our client’s perceived rights. The paradigm shift encourages us to change our way of thinking. Instead of simply arguing to protect our client’s rights, we should instead seek to consider both parties wishes and try to understand what the parties respective underlying interests are – i.e. why are they adopting a position and what are the fears and concerns that underlie the arguments and the position they have adopted? A paradigm shift or just common sense? I’ll let the reader decide, but I have to say it always disappoints me when I come across a lawyer who will take a stony-faced approach to arguing their client’s case without any other consideration. Such an approach is a straight path to litigation, increased costs and heightened animosity.

Another shift in attitude is the way in which the collaborative process works through face-to-face discussion. As collaborative lawyers we encourage clients to adopt the process because it empowers them to take an active role in the discussions and the decision-making, rather than taking a back seat and letting their lawyers write the letters, construct the arguments and run the negotiations. We are taught to lead from behind and trust our clients, with guidance when needed, to make those decisions which will enable them to shape their own futures. A lot of work is done with our clients outside the meetings, as well within the “four-way” round-the-table sessions.

More often than not, an experienced family lawyer will know what the outcome will be: if not a definitive answer then at least something within a range of possible outcomes, taking into account the courts’ discretionary powers to allocate assets and make arrangements in respect of children. We know however that a court has limited scope to be creative. A court cannot impose flexible arrangements for a child, for example – it can only provide a timetable. But within the collaborative process, the parties can reach their own arrangements and can be as creative as they want to be. There is a shift in attitude from just thinking “what would a court do?” to “what options are available in this case with the facts and circumstances that may be unique to this family, and what they are trying to achieve?”

One phrase I particularly like in the training I underwent was that collaborative lawyers should seek to “do no harm” and “leave no footprint as best we are able”. We are taught not to just impose our will onto separating families but to guide clients to reach their own outcomes as they are bound to be longer lasting.

I could go on talking about how a paradigm shift in attitude and practice is required to engage in the collaborative process. But I have a little confession to make. From from my own perspective I don’t think it is a revolution but more of an evolution. Clients are increasingly aware of their legal rights. They access online information or gather  information from books like Marilyn Stowe’s Divorce and Splitting UpMost, hopefully at least, don’t just rely on a friend who has been through an acrimonious separation. In other words, they are less reliant on lawyers to advise them of their rights.However what they often need is somebody who can work alongside them, who has experience of negotiating in an environment of heightened emotions, who understands the underlying motivations and interests and can help find solutions to problems and ultimately ensure that an agreement is recorded in writing in a way which satisfies the legal and technical requirements of the courts. Of course, if a case ends up having to go to court reach an outcome after all, then an ability to achieve a desired and fair outcome from the Court is a necessary skill. However if you immediately take the path of litigation then you are losing out on so many opportunities to explore what is the best solution for you and your family.

So much of the paradigm shift is really common sense. It’s not rocket science but sometimes you just need a catchy phrase to make you sit up and think about something in a different way.  And here’s another secret: anybody can do that. Don’t think you have to be a collaborative lawyer to think in a different way!

Photo by Nicola Corboy via Flickr

Julian is Stowe Family Law’s Senior Partner and is based in our Leeds office.

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