HM Insights

The lost art of ‘talking’ – how family law collaboration can bridge the gap in separations

At a recent business dinner, conversation turned to how much we all use email – some people can't live without it and others hate it and the fact that it follows them around 24 hours a day. The view was expressed that younger solicitors in particular tend to resist making a phone call unless they absolutely have to. The general feeling round the table was that that was a loss and we wondered if actually this was a development (although not necessarily for the better) throughout society in general. Banksy, of course, brilliantly made the point in his recent artwork of an embracing couple gazing lovingly into their smart phones. 

Solicitors, of course, love everything to be in writing and like to be able to have a huge file out of which they can point to a particular piece of paper to say, in effect, "I told you that". To that extent emails and texts are marvellous and give us evidentially a far better record of all that we say. Emails have the added advantage of not always requiring a file note to be typed up so in some ways the email does two jobs at once.

 Email – it's the way you say it

The problem, however, is that something is being lost because we are not talking to each other - relationships. As one person at the table observed, even if type "have a nice weekend" in an email, often the reply deals only with the business aspect and effectively ignores the sociable part, or simply repeats "hope you have a nice weekend too". The same scenario during a phone call is different because you build a relationship, maybe actually discussing what you are each doing at the weekend. When you next speak you can go back to that shared discussion and a relationship will start to be built on these small foundations. Another issue with email is that you do not always get the intended tone and meaning. What one person sends because they are busy and want to get something off their desk can sometimes seem a bit abrupt and even "shouty" at the receiver's end. 

As family lawyers we regularly come across situations where text messages between a couple whose relationship is deteriorating become the battleground and each solicitor invariably gets a copy of all texts as evidence of what the other has said. Often, I think that if only they had just spoken to one another instead of sending angry sounding texts, the situation might have been diffused.

Solicitors, as I say, like to have things in writing, but sometimes there is nothing better than to pick up the phone and discuss the problem case with your opposite number to try to get to the nub of the areas separating you, rather than just relying on the ping pong of emails.

Four-way meetings with clients, so that everyone is round the table discussing the situation head on rather than lengthy letters or emails, can really achieve a lot. Individuals can take great offence at things their spouse's solicitor have said about them; their conduct, their parenting skills and so on. If this can be cut down to a minimum or cut out entirely that has got to be a good thing, and this can require changing mindsets so that people are willing and able to talk to one another.

Collaboration and mediation

In the last few years more family lawyers in Scotland have become trained in collaborative practice. Both parties and agents sign up to an agreement at the outset that the case will be resolved on a collaborative basis. All negotiations are conducted at round the table meetings. This is intended to remove the damage that lengthy letters and emails between agents can cause. All parties also agree that they will not instruct their collaboratively trained lawyers to raise a court action on their behalf and this means that all parties have a vested interest in trying to resolve matters by way of effective and respectful communication, without the threat of a court action looming.

Changes in the family courts in England now make it mandatory for parties to be given information about mediation before they litigate. Whether that is a good thing, or the right point in time, is still being debated. Provision of information is probably never going to be wrong, but there might be a better time to do it and, to be fair, most solicitors advising in a family case will advise clients at a very early stage about the option of mediation.

The last resort 

There is implied in this, however, a suggestion that people rush off to the divorce courts without a thought and without trying to sort things out. I have never met that client, or for that matter that solicitor. Most family cases (excepting cases involving violence or other special urgency) come to court only after months, sometimes years, of trying to resolve the issues by agreement through discussion, in one format or another. In the majority of cases, the couple will have talked at length about their problems, although not necessarily finding a common approach on how to resolve them, which is when I think the mediator can do their best work.

One politician recently blamed Maureen Lipman on the state of the country's education because of her involvement in those BT adverts years ago. One of the messages from that old advertising campaign from years ago fits equally well today - "it's good to talk".

Harper Macleod's team of family solicitors understands that divorce and separation can have a huge impact on your life, and can guide you through the best course of action with sensitivity and objectivity. Getting the best advice is crucial to resolving your situation, and there are many options available to you, from litigation and arbitration to negotiation, mediation and collaboration. We have also designed a number of packaged fees which, in certain circumstances, will let you know from the outset what the costs will be.

To talk to one of our team call 0141 227 9545.