“It’s in the pre-litigation dispute resolution space that family law practitioners can find the most rewarding and creative experiences,” she said.

“It’s a unique opportunity for lawyers to develop new models of best practice, to establish multidisciplinary cooperative networks and explore fixed-fee and alternate pricing structures. Both our clients and our legal teams will be happier and more productive as a result.”

In conversation with Lawyers Weekly, Ms Faigenbaum said that whilst they may often end up in the FCFCOA, a relationship breakdown should be considered a human issue rather than a legal issue.

“The challenge for family lawyers is to sensitively manage the range of human responses that come with separation — grief, hurt, fear, insecurity, loss — and to try to fit these into a set of rigid legal rules and systems.

“Over time, family law practice in Australia has responded to this existential challenge by increasing the emphasis on alternative dispute resolution as a primary means of settling disputes, not just as a substitute for litigation. Family dispute resolution focuses on outcomes and pragmatism rather than evidence and entitlements. It gives families a safe, confidential space to explore constructive resolutions and allows them greater control over the decisions that impact their lives,” she explained.

“But while the legislative agenda has steadily been shifting our practice from a litigation orientation to a dispute resolution focus, it’s taking many of us in the fraternity a lot longer to shift our mindset from that of ‘adversary’ to ‘problem-solver’.”

The new Central Practice Direction (CPD) and Family Law Rules are driving this shift, with FCFCOA regulations emphasising disputes more than ever.

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“The mandate to seek dispute resolution opportunities is built into the structure and framework of the new pathway. With important key provisions that act like signposts to constantly prompt practitioners and their clients into active problem solving.

“It starts at the pre-action stage with new rules that require an issuing party to verify what bona fide steps they have made to resolve the dispute and to serve a properly prepared notice of intention on the responding party. The notice must include a genuine offer of settlement,” Ms Faigenbaum added.

“But the dispute resolution mandate doesn’t end at the door to the court. Core principle five of the CPD requires parties and practitioners to identify appropriate opportunities for dispute resolution throughout the course of proceedings. And in property matters, there is an explicit obligation on parties to pursue settlement offers at specific stages of the proceedings.”

Therefore, resolution over escalation can mean better, cheaper and more sustainable outcomes for clients who make “considered, logical, well-thought-out decisions”, according to Ms Faigenbaum.

“Cost is the biggest driving factor when it comes to de-escalating disputes. But not just financially. Protracted litigation takes a massive emotional and psychological toll on families. The frenetic pace and intense scrutiny of court events can be overwhelming for many clients,” she said.

“Biologically, when we are in a stressed state we operate from the lower part of our brain. We lose access to our higher order thinking. This means that acutely stressed clients are often asked to make major long-term decisions when their biochemistry actually prevents them from doing just that.”

In terms of how family lawyers can start encouraging their clients to think longer term, Ms Faigenbaum said it’s important to (re)educate clients as to what dispute resolution actually is: a process.

“It’s important to set these expectations right from the start of the retainer by properly explaining the new court pathway to our clients and what will be expected of them at each point along the way,” she said.

“As practitioners, we should lead by example. Think critically and ask yourself: How is what I’m doing right now furthering the resolution of this matter? Where can I find an opportunity for resolution rather than escalation?

“Many clients will find this shift in approach quite confronting, so it often helps to reframe their circumstances. Ask them how they would handle their situation if their ex-partner was someone that they were doing business with, someone they didn’t like all that much, but with whom they had a lifetime investment. Or prompt them to think objectively, about their behaviour by asking: ‘If your children look back on this experience in 10 years from now, what will you have done to have made them proud?’”

And whilst this cultural shift can bring with it uncertainty and some resistance, it should be embraced moving forward, added Ms Faigenbaum.

“At Nest Legal we’re embracing the changing landscape of family law practice by adapting our service offerings. Whilst traditional adversarial practice tells us that having a lawyer representing a client’s best interests from start to finish is ideal, our clients have been saying that this is not always what they want or need from us,” she said.

“We got creative and designed a bite-sized family law service menu to help and support these families at the points along their separation journey when they need us most. Practitioners that embrace this shift and use the dispute resolution space to create new opportunities for client service delivery will be rewarded with happier clients and more enriching experiences.”