Lawyers: Are we Fuelling the Fire of Divorce Drama?

I’ve seen the ins and outs of divorce and separation proceedings more times than I can count. And while it’s our job as lawyers to advocate for our clients’ best interests, there’s a conversation we need to have about the role lawyers sometimes play in escalating divorce disputes. It’s not always comfortable to admit, but the very presence of lawyers can, in some cases, turn a manageable disagreement into a full-blown battle. Let’s delve into three reasons why this happens and explore what we, as legal professionals, can do differently.

 

1. The Very Presence of Lawyers Can Escalate Disputes

When a lawyer steps into the picture, what was once a private matter between two people can suddenly feel like a confrontation. The formality and the adversarial nature of legal proceedings can make it harder for couples to communicate directly, leading to an escalation in hostility. It’s as if the act of hiring a lawyer is a signal to the other party that this is war, it gives vibes of an attack, not a process of mutual separation. It’s crucial for lawyers to be mindful of this dynamic and strive to keep communications between parties as amicable and open as possible. Where possible, sending the client to mediation before sending the first lawyer to the other party is a good way to keep things calm.

 

2. Lawyers Are Naturally Litigious

By training and by trade, lawyers are taught to argue, defend, and litigate. It’s what we do best. However, this inclination towards litigation can sometimes mean that we push for courtroom battles where negotiation and mediation might have served the family better. The adversarial system encourages a win-lose mindset, which is often not conducive to the nuanced, emotionally charged realm of separation. When I was at university, we would participate in Moot court, where we would have practice court matters. There was always a winner and a loser. The challenge for us as lawyers is to remember that the best outcome in a family law case is not always winning the case in the traditional sense but ensuring a fair and respectful resolution for all parties involved.

 

3. Meeting Billing KPIs and Requirements

This is a tough one to talk about, but it’s an open secret in our industry. Law firms have billing targets. When I was a junior employee lawyer, each Monday morning, there was a printed report of my billings for the previous week printed and left on my desk for my review (and explanation if I was “under”). I absolutely felt the pressure. Let’s be real, going to court can be a significantly “easier” source of billable hours than sorting things out amicably. This inherent conflict of interest means that there’s a financial incentive to prolong disputes rather than resolve them swiftly. It’s not to say that lawyers are unethically dragging out cases for profit, but the pressure to meet financial objectives can subconsciously influence the direction and duration of divorce proceedings. This is why at our firm, I intentionally celebrate settlements each Monday at our team meeting, to make it clear to my team that we value good outcomes over the billable hour.

 

So, what’s the solution? It starts with us, the lawyers. We are the gatekeepers of the legal system and we need to prioritise the well-being of the families we represent over the litigious instincts we’ve honed. We should be advocates for mediation and collaboration, exploring every avenue to avoid escalating conflicts unnecessarily. And when it comes to billing, it’s time to have that chat with the principal of your firm and discuss the values of the firm and ensuring we are celebrating settlements, ensuring we’re part of the solution, not the problem.

The role of a family lawyer is not just to navigate the legal system but to guide our clients through one of the most challenging times of their lives with empathy, integrity, and a focus on healing. By acknowledging the ways in which we might inadvertently contribute to the difficulties of separation and taking steps to mitigate these issues, we can help make the process of separation as smooth and constructive as possible. Let’s be part of the change.