Tuesday, 29 September 2015

Lawyers – is it all about the money?

Why do lawyers, and particularly family lawyers, have such a bad reputation when it comes to costs and charging? Maybe it’s because of examples like these:-

  • A partner who charged clients for more than 5,471 hours in a single year – about 15 hours a day every day.
  • The lawyer who charged his clients for running air-conditioning during the weekend.
  • The lawyer who billed more than 150 hours during a 2 week period in which he actually worked for less than 50.
  • The lawyer who charged for 26 hours of work in a single day.

Thankfully these examples are from the USA but they are symptomatic of the image lawyers have which explains the reluctance of many people to approach lawyers at all unless they absolutely have to.

This is where collaborative practice is different. Firstly collaborative practice is underpinned by a set of ethics and values focused on the welfare of clients and their families which include:-

  • Transparency;
  • Fairness; and
  • Value for money.
The focus in collaborative practice is working together as a team to achieve outcomes which meet clients’ interests, needs and goals. The team comprises lawyers who advise, guide and support their clients and neutral professionals (psychologist and financial professional).

Another distinguishing feature about collaborative practice is that the costs are primarily incurred during the joint meetings when everyone is present and where the real work is done. This provides transparency and clients can see for themselves the progress that is being made towards resolution. In this way collaborative practice is efficient and we avoid significant charges for what is often unnecessary work – especially endless emails, letters, telephone attendances and other internal office work which does not create any real value. This works particularly well in family law but is also effective in other areas of law.

In the end it is all about value – lawyers need to create value for the work that they do. Collaborative practice lends itself perfectly to this objective and should be the way of the future in resolving family law disputes – and maybe even changing the image of lawyers!

For us at Bayside Collaborative it’s certainly not about the money! Visit our website at www.baysidecollaborative.com.au to find out more.

Friday, 4 September 2015

Law as a healing profession

Family law is often regarded as a battleground with winners and losers where the lawyer’s job is to fight for their client. Separation then becomes a battle of wills, strategies, tactics and power (in which money can play a significant part).

It is little wonder then that family lawyers (and lawyers in general) have a bad image when they are regarded by the community as “hired guns”. Has it always been this way? Does it need to be this way? To quote Warren Earl Burger (Chief Justice of the United States from 1969 to 1986):-

The entire legal profession – lawyers, judges, law teachers – has become so mesmerised with the stimulation of the court room contest that we tend to forget that we ought to be healers – healers of conflicts.

Robert Benham, the first African American to serve as Chief Justice of the Georgia Supreme Court, spoke about three fundamental professions found in all civilised societies:-

Medicine – which heals the body;

The clergy – which heals the soul; and

Law – which (properly understood) heals breaches in the social fabric.

What a different way of looking at family law and family lawyers! This approach is so relevant to a family separation. It strikes at the heart of what we should be doing when there is a separation and especially where there are children involved – helping to heal the conflict and to move the family through the transition from a single family unit in to a separated family.

We all know how much pain, stress and dislocation can be caused by a separation. It then makes sense to think that lawyers (and other professionals) should be there to heal and repair – not to cause further conflict and division.

The core and centre of collaborative practice is to heal and repair by achieving resolution in a way that is fair, dignified, respectful and focused on the welfare of children.

Collaborative practice is a significant advance towards changing the perception of lawyers from “warriors” to “healers”.

Family Separation – how relevant is “family law”?

I’m aware of a recent family law case in which a clearly legitimate claim was dismissed because of a technicality involving the date on which a document was filed. This meant that the client was completely denied pursuing an appropriate property settlement after a very long relationship period in which the client and her partner had a child together. The partner won on a technicality!

I was struck by the injustice of this situation. The Family Court may have been correct in a strict technical interpretation of the law but the question is – how is this reasonable or appropriate in a family going through a separation process? How does this help anyone?

A marriage is not a commercial contract. It cannot be dealt with in the same way as business partners who end a business relationship. Yet this is what our court system does to a large extent. This approach does not meet fundamental needs of married partners or de-facto partners who are going through a separation process – especially when children are involved.

The adversarial court approach encourages people to “fight” for the best possible outcome – whether in relation to financial outcomes or even arrangements for children. The battle lines are drawn and tactics and strategies are used to gain an advantage. I am not saying that courts should never be involved in family law matters. There are some instances in which court intervention may be necessary. The problem is that the Family Court system and the adversarial process are almost the default position in how we deal with these issues and this approach is often pervasive in what passes for negotiation.

Families going through a separation process need advice, guidance, support and resolution – not a battle.

We need to minimise (not increase) conflict and division to assist families going through a separation process. We need to help separating partners work together with professional assistance to achieve solutions. Those solutions needs to be based on what is best for families and children – not on legally prescribed outcomes achieved through an adversarial process.