Navigating the emotional turbulence of divorces
Nikolai Viedge – 2nd May 2023
No one gets married with the intention of getting divorced, so the old adage goes. Certainly, divorce typically represents one of the most difficult times a person can go through. In addition to the divorcing couple, there can often be children involved, which makes an already turbulent emotional time even harder. Sympathetic to the emotional stress of divorce, the Family Solutions Group recently called for an end to ‘combative’ language in family separation cases.
We spoke to divorce and family lawyers from two highly regarded firms – associate Fiona Porter from Stewarts and partner Adele Pledger from Withers – to discuss the possibility of and importance of a soft approach in divorces.
“Let’s talk about language first,” begins Pledger, “I think it’s habit of lawyers to talk about ‘your client’ and ‘my client,’ referring to the other side as ‘their opponent,’” and so on. The effect that type of language has, says Pledger, is that it polarises issues and client attitudes. “Lawyers can do that subconsciously,” she adds. “So, I think we need to make more of a conscious effort to improve that.” One way of doing so, she says, is to “refer to people by first names and try to personalise correspondence by referring to the other lawyer by their first name.” After all, it will inevitably “help clients if the lawyers involved know each other and get on well. We as lawyers should act as a filter to our clients. Our clients are going through one of the most difficult times of their lives and while we’re often their punchbags, that’s where it should stop.”
On top of moderating language, both Pledger and Porter highlight the benefits of mediation. “From our experience,” says Porter, “when separating couples are trying to reach an agreement, either interim or long-term, it can be really effective.” Porter explains that the “mediator is there to encourage dialogue to clarify issues and explore options, and to help the couple problem solve between them.” For the people involved, Pledger adds, it can be an empowering process: “They get to make the decision through the mediator.” A result people are more likely to adhere to if it’s one they have reached together. “Because the mediator’s job is to be neutral,” Porter explains, “it strikes the balance between someone who listens and provides a neutral voice, which is helpful for bridging difficulties.” Another benefit is that parents who can successfully engage in mediation send a “message to the children that the parents can work together,” Pledger adds, “for the children to know their parents can reach decisions between them pays huge dividends you can’t underestimate.”
Of course, as both interviewees acknowledge, “there are cases where mediation might be unsuitable,” says Porter (in cases of a significant power imbalance or domestic abuse, for example). “But mediation can help build a positive co-parenting relationship, which help them communicate well moving forward.” On top of its psychological benefits, mediation is typically “more cost effective and quicker,” Porter notes. In fact, it is compulsory for divorcing couples to attend a MIAM (mediation information and assessment meeting), though a number of people continue to use the platform as a tick box exercise.
So, what impact will mediation have on the role of lawyers in cases like this? Pledger explains that “quite often clients have lawyers in the wings to say, ‘that’s about right’ or ‘this is what you could expect in court.’” And she warns that “mediation without a lawyer in the wings, without understanding what they’ve agreed to,” is a risk. “People can use mediation to take advantage of people.”
However, while the road to conflict is paved with the best intentions, the reality is that some people are out for blood (usually figuratively). Porter adds that sometimes “you can have a client who wants everything to be amicable and there’s resistance on the other side.” The danger here, says Porter, is that “combative behaviour can get you to respond combatively, but you don’t have to do so. If it’s in the best interest of your client, you can go back to try to reduce the temperature.” But, as Porter warns, “it can be hard not to rise to the other side’s behaviour from the client’s perspective, but it’s important to note you don’t have to have the other side dictate your response.”
“It’s naïve and ignorant to think you should fight an aggressive letter with an aggressive letter,” says Pledger. “Sometimes it’s necessary. But, if you’re known as being aggressive, it actually negates the aggression. Lawyers need to think carefully about the tone of their letters and not fall prisoner to the other side or the tone that client wants.” In fact, this is something Porter echoes, “if you’re the party keeping a cool head, it doesn’t mean you’re not alive to the tactics of the other party.” After all, if it ends up in court, the court wants to see that that people are working constructively towards a mutual agreeable endpoint. Continued aggression will be frowned upon.
If you’re interested, you can read more about family law here.
Adele Pledger is a partner in the divorce and family team at Withers, specialising in all aspects of family law, including divorce, pre and post nuptial agreements and private children law issues.
Fiona Porter is an associate in the divorce and family team at Stewarts, focusing on marital and relationship breakdowns, particular in cases involving private children matters and international elements.