The NSW Attorney-General Gabrielle Upton recently encouraged lawyers to resolve disputes away from court, citing cost pressures and demand and supply issues in courts. Upton’s call followed a consultation paper by the Law Reform Commission on standardising alternative dispute resolution (ADR). For many lawyers, these pressures are hardly new. Insights spoke to family lawyer, author of Splitsville – How to separate, stay out of Court and stay friends, and creator of the Happy Lawyer, Happy Life podcast Clarissa Rayward on why she thinks avoiding court is better for clients and lawyers, and how she does it.

“There are many obvious benefits to avoiding the Court process,” said Rayward. “The first is the financial cost to the parties involved, but I think what is often overlooked but is perhaps even costlier are the personal or emotional costs involved in the Court process.

“As a family lawyer those costs are significant. Placing into the hands of a stranger the decision about two of the most significant things in your life – your children and your belongings – would have to be one of the most stressful things a person could do.”

Rayward noted that the Court process is innately complicated, confusing and time-consuming, with parties involved in family law disputes often taking two years to resolve a matter once it goes to Court.

“It is a long time in a person’s life to be living in a state of uncertainty, under high stress with their future in the hands of another,” said Rayward. “Further, it is very unlikely that after a Court proceeding, parties in litigation will be able to maintain any semblance of a positive relationship. In the commercial sphere this may not be significant, but in a family law context where parents need to work together for the rest of their children’s lives, this consideration alone and the ongoing impact to children who live with parents in continuing conflict is reason enough to avoid litigation.”

Keeping one’s disputes outside of the traditional legal process offers parties more control over the outcome, as well as the ability to manage legal and personal costs and improve the possibility of maintaining civil and respectful relationships.

“These advantages may sound trite, but when you break it down and think about the issues that often bring parties to Court, the capacity to manage your risk, minimise the financial cost and manage the personal cost has significant long-reaching benefits,” observed Rayward.

However, given the acrimony that may have led to clients seeking legal advice, this may be easier said than done.

“The challenge for lawyers is that the problems that bring a client to our office are often not, in the mind of the client, legal issues, and whilst there may be legal consequences to their dispute or dilemma, in their mind the problems that they are facing are often human, emotional, personal challenges that sometimes the law simply can’t solve on its own.”

To try to achieve a more mutually agreeable, or at least less acrimonious outcome, Rayward advocates listening and looking for what the client perceived as the best outcome.

“Rather than trying to assume what I think the client’s problems are, I let them tell me their story, try and articulate and understand what they see as the issues before I apply a legal layer to the conversation. I listen twice as much as I speak,” said Rayward.

“I’m always interested to learn what a client perceived as the optimum solution to the dilemma they are placing before me. I will often try and ask them to articulate this, well before I’ve given any legal advice or guidance on the matter.” It’s an approach intending to help “arm clients early on with a sense that they may and do have the tools within them to solve their challenges on their own.”

“Encouraging clients to educate and empower themselves to make their own decisions is a very powerful tool in reaching compromise and settlements later in legal negotiations,” said Rayward.

Resolving disputes out of court has benefits for lawyers too.

“The traditional practice of law, at its heart, is very adversarial,” said Rayward. “Imagine you’re on the hospital operating table. Around you are a team of amazing surgeons, doctors and nurses doing all they can to fix you. At the same time there’s an equally talented group doing everything they can to undo the good work of the first team to ensure that you don’t survive. In the simplest form this is the life of a lawyer. It’s a battlefield that keeps the warriors in a heightened state of stress all the time the battle rages, and for most lawyers no sooner has one battle concluded another begins.”

Moving away from a purely adversarial, court-based approach is therefore offers significant benefits not just to clients, but also their lawyers, as both work together to achieve more civil, conciliatory, mutually agreeable outcomes.