Family lawyers are selling the wrong product
Imagine walking into a car showroom to buy a new car. The salesperson comes over and immediately takes you to see their best-selling model, the one the vast majority of customers purchase. Their sales pitch? Here’s the most expensive, slowest, least comfortable and most dangerous car we offer. Of course you would walk away.
This is an analogy I’ve been sharing for many years because it captures so well the peculiarity of family law as a commercial offering to customers. We have various ‘products’ on sale including litigation, mediation, hybrid mediation, arbitration, private FDR, neutral evaluation, collaborative law, round-table discussion, one couple one lawyer, as well as dynamic combinations of these. Of all of them, litigation is the worst by many measures. It takes a very long time, costs an awful lot of money, it can be massively emotionally draining, and it often damages family relationships. So why is it the only thing in so many shop windows?
Why do we focus on litigation?
One obvious reason is because most of us ‘start out’ as lawyers, so to speak, in the sense that we train as lawyers first and become family law professionals second. In a lot of ways, this is the wrong way round. If you were starting today to build a system to help resolve family issues and disputes, would you build it within the court system? No, but we didn’t build this system from the ground up, we didn’t build it in modern times, and in a lot of ways we didn’t even really build it on purpose. It’s evolved out of something old fashioned and still has a long way to go.
The legal environment as a whole is an inherently conflictual system, designed to resolve disputes and punish misdeeds. It’s how we enforce our societal rules between and against one another. Of course it’s not the only way we do this, but it is the most formal, most distinct and most monetised. Plus it does have its advantages.
One advantage is it’s reassuring. The legal system is a place where, *at least in theory*, outcomes are decided properly according to who has the best case to put. Out in the rest of the world things often don’t work this way; people with more power and fewer compunctions take advantage and come out on top even where they have no rightful claim to do so. In law there’s an entire mechanism at work to make sure that you input your evidence, input your argument, and the other side does the same, and then a trained and neutral person decides who wins. It’s controlled and intellectually secure, so if you lose you at least know you’ve lost to someone with a better case. Such is life.
From a personality-type point of view, you can see how historic generations of lawyers would have created a system like this. It's easy to see the draw of the law. I can see the common characteristics across most of the lawyers I’ve ever met – a rigorous and systematic working environment for a rigorous and systematic thinker. It’s part of what drew me to the law. A problem-solving system for a problem-solving person to work within. Where people have problems and you’ve got a whole setup for how to help them. Follow these rules, and you will get an outcome. Sorted. Next in line, please.
Vitally – and to make the serious point in contrast to the slightly over-simplified title of this article – the court system is incredibly important because for a lot of people it's the only viable option and a guaranteed resolution – whatever it might be – is necessary.
But we sell this system to a lot of people who don’t need it, and who would be far better off with something else. To stretch the analogy somewhat – some people do in fact have a long car journey ahead and if the only car in the lot is litigation so be it, but some people aren’t going far, or don’t even need to go by car at all.
Here’s how and why this car works, but what journey do you want to go on, and do you actually want to buy a car? The person guaranteed not to ask these questions is the person who only sells cars.
Change is coming — and that’s a good thing.
The Family Procedure Rules changed on 29 April 2024. The headline is that all family law professionals are going to have to consider all the options with their clients from the outset of cases and throughout. Courts have more power to direct people towards other dispute resolution (DR) options, and cost penalties are coming to those who fail without good reason to consider resolving disputes outside of litigation.
As a bare minimum, this means we will all need to understand what’s available. However I go further than this. I think the rules changes reflect a changing reality, which is that those people and practices who don’t realise the need to offer multiple options to clients will be left behind. This changing reality is a good thing, because other forms of DR are fundamental to us offering clients the best options and outcomes.
Here’s an example from one of my own mediations, of how much better it can be to offer people something different than litigation. There was a court application already being drafted in the background for interim spousal maintenance and the potential costs were plain to see – many thousands of pounds preparing for and attending a contested and stressful court hearing. The parties came to me for mediation with a financial neutral (the family’s independent financial advisor) also present, and we resolved the interim maintenance in less than two hours. Just in financial terms the saving was equivalent to many months’ worth of those maintenance payments, but perhaps more importantly it enabled the participants to focus on more important things like their co-parenting.
I often talk to both clients and family lawyers about options beyond litigation. A frequent refrain is that going (or sending a client) off to a DR professional like a mediator can be unnerving, especially if you’re going to be in the room with the other person and without someone there like a lawyer to support you, and where you can’t guarantee that the same level of rigour and systematic approach will be taken in that space. I’m pleased to be able to alleviate these concerns by explaining how flexible a service like mediation can be and how it can accommodate a huge range of different people and situations. For example, one of the many benefits of hybrid mediation is people can sit separately and with their lawyers present.
If you’re a touch nervous about recommending something like mediation to your clients, then referring a case to a known and trusted DR professional is vital if you want the security of knowing your client will be in good hands. It’s reassuring to know they will still bring that lawyer skillset with them, in combination with everything else, and apply a suitable degree of care and exactitude to the situation. Please feel welcome to get in touch with me if you’re interested in my mediation services. I offer the classic family mediation model as well as the hybrid approach where people can have their lawyers present. I also offer neutral evaluation services (with my barrister hat on) to those already in mediation.
But I also strongly recommend that all family lawyers consider expanding their familiar practices beyond litigation and into some other forms of DR.
The universal benefits of DR training
Even if you’re not considering working in other areas of DR any time soon, there’s a strong argument for doing some DR training anyway; it can revolutionise the way you work with all your clients.
If all your training and experience is in ‘selling cars’ – i.e. litigation – then the contrast between that and the bicycles, or trains, or walking boots of other dispute resolution methods is distinct. Of course this can seem really daunting – fear of the unknown is normal and expected – especially if it connects to a concern about whether the job you know now is going to change beyond recognition in the future.
Processes like mediation don’t have the same rules, often don’t have a separate decision-maker and don’t necessarily guarantee an outcome, so it can feel like a less intellectually secure space to work in. It’s easiest to just keep doing the one same thing that you were trained in and that you know so well.
However, the DR space may be unnerving simply because it’s unfamiliar, and not actually because it’s wildly different and beyond your skills and experience. A lot of what DR practitioners do will be a more refined, deliberate version of things you’re already doing.
I think a lot of family lawyers – a lot of the good ones certainly – have learned a great deal of skills indirectly, second-hand or accidentally, that aren’t trained into us at law school or thereafter. Active listening, normalising, redirecting, re-framing, going behind the position to the interests – these things are actively taught in DR training settings such as family mediation training and these are things that help us with all our clients, no matter their process.
I am my own best example of this – I trained as a lawyer (albeit with a background in philosophy) – and came to the world of family law knowing only litigation as a solution. All I had was a hammer, and all I could see was nails. I had no real idea what I was missing at first – I didn’t know what I didn’t know.
I then started the process of figuring these things out myself as I went along, seeing what worked and what didn’t, seeing other people do things well (or not), reading books about psychology and listening to podcasts about logical fallacies – amassing a collection of skills without much direction or structure. The more I did the job, and the more I saw how my ‘outside’ interests in philosophy, psychology and decision-making could be valuable, the more I looked for alternatives to this often-destructive option of litigation.
Did you know? According to the Centre for Effective Dispute Resolution, 92% of mediated cases result in an agreed outcome.
I often think about the history of farming, strangely enough, and in particular what’s known about crop rotation. The idea is simple – humans figured out the fact that crop rotation works long before they figured out the science of why crop rotation works (soil nutrient replenishment etc etc) – and again it transfers across to family law. A lot of family lawyers are deploying these skills ad-hoc and more by cumulative trial-and-error than by deliberate action.
What’s odd, though, and where we depart from the crop rotation analogy, is that the science is known, is available and has been for years. We just don’t access it. Family law operates in a silo all too often. Go over into the fields (pun intended) of psychology, behavioural economics and decision-making and you will find increasingly large bodies of evidence for the why that explains and elevates these crucial skills that we have for too long pejoratively called ‘soft’.
It's taken many years, but I’ve been doing this sort of learning on purpose now for so many years that I actually do have a coherent and connected set of skills that goes beyond the classical attributes of a lawyer. Part of my learning was to train as a mediator and whilst I’m happy that I now have that further option to offer people, perhaps what’s more interesting is that it immediately made me a better lawyer, even within the most conflict-heavy litigation. Indeed arguably the best course I’ve ever done as a lawyer was my mediation training.
I am better able to connect with my clients, to speak in a way that I’ll be heard, discover what my clients really need, help them see things differently, and help them communicate themselves so they are heard by the person ‘on the other side’ of the issue. These things are valuable in any setting, and sometimes the absence of these things is the reason why cases are in the mire of contested litigation.
Conclusion
Successful family law firms of the future will offer litigation as just one of many options. Mediation, arbitration, neutral evaluation, collaborative law and the rest should be the norm, not the exception, on offer to all clients at all stages of their family law disputes.
Who goes to the car dealership that only sells one type of car? Who would go to a doctor who only offers invasive surgery? And who will go to a family law firm who only offers litigation?
Subscribe for more like this; future content will include a Spotlight series highlighting some of the fascinating, innovative work that’s being done by family law professionals beyond the scope of litigation.
Get in touch if you’re interested in any of my services. As well as a barrister I’m also a trained mediator, hybrid mediator and high conflict specialist.
My legal services are offered separately via my chambers website; my clerks manage my legal and mediation work and their contact details are here. I also offer in-house training on a variety of subjects including first client meetings. I offer individual and firm-wide consultancy on improving productivity, wellbeing and communication. To get in touch with me direct, please subscribe then go to the Contact page above.
--
Three very useful articles on the fuller details of the FPR Rules changes have been written by Karen Barham here, by Caroline Bowden here and by Claire Filer and Priya Luharia here.
The CEDR success rate statistics are from a 2023 study and can be found here.
Today’s topical video is this (very NSFW) clip about limited choices from Eddie Izzard.
Today's recommended track is Drive by Gretel.
Today's recommended article is about how to respond to hostile emails; it’s written by the legendary Bill Eddy, who trained me in high conflict dispute resolution at The High Conflict Institute in California.
--
If you enjoyed the article please consider subscribing down below; it really helps support this project.
*From above - world’s biggest proviso, but the article on the ways in which the system fails at what it tries to do is for another day.