A few weeks ago I attended the Resolution training on collaborative law. For those not acquainted with the concept, collaborative practice looks for a client-led solution to family disputes, with both sides being represented and agreeing their own arrangements at a series of four-way meetings. The lawyers and parties sign a commitment to work collaboratively, without the need for the court process.
The training itself has made me re-consider how all cases are dealt with, whether in court or out. Here are three points that I think we could all do with remembering:
The court process is scary
As lawyers, the court buildings become like second homes and we sleep-walk through the process and procedures. For clients, everything is alien. They don’t know when they have to speak, whether they will give evidence at the first hearing, how much it will cost, what an ‘usher’ is, even where the toilets are. This anxiety will only hinder attempts at negotiation. It is important to reassure clients from the start, let them know that their lawyer will support them all the way and give them as much information about the procedure as you think they can deal with. If the client has other needs, be they physical disability, low IQ or other vulnerability, this point is even more important.
‘The next hearing’ is not inevitable
How often do we say to clients “today we will look at directions and at the next hearing…”? This presupposes that matters cannot be settled at the first hearing. Perhaps they cannot. But clients should not be led to expect that further litigation and acrimony will follow. Their case should only last as long as it takes for them to settle it. Only if they cannot will a further hearing be required. The assumption should be that one hearing is enough and that a further one is the exception rather than the rule. This encourages the parties to consider negotiation at all stages.
They used to be close
How many times have I heard a client say “I never thought I’d end up here”. The parties used to be in an intimate relationship and they know each other better than the lawyers ever will. They have the capacity to see sense, experience empathy and make rational decisions. They may just need some guidance to get there. Some clients are totally shell-shocked when they first attend court. It’s often important to find out if they have sought emotional support, whether from friends, family or through a GP. It’s often only when clients can see a future that they are able to consider the steps to enable them to get there.