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‘The family law system is broken’ and litigation isn’t the answer

Dispute resolution and “responsible lawyering” is the way forward, according to this pair, who said that “litigation never gets anyone a good outcome” in the current day and age.

user iconLauren Croft 26 October 2023 SME Law
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Rose Cocchiaro and Chanel Martin are both partners from Resolve Divorce, which recently won the Boutique Firm of the Year category at the Australian Law Awards. Speaking on a recent episode of The Boutique Lawyer Show, the pair discussed the importance of responsible lawyering and changing the culture around litigation.

Resolve Divorce has taken a different approach to practising law, according to Ms Martin, who said their main goal was to be “innovative” in the family law space and influence “the profession and the industry to do the same”.

But in terms of what “responsible lawyering” actually means, Ms Martin said that during a dispute, lawyers have a “real responsibility to support their clients” and “get an outcome in a way that has the least negative impact”.

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“I think sometimes lawyers end up being a voice box for their client, which is hugely dangerous to guiding them through the process in a responsible way. So, for me in my practice, one of my bugbears is really lawyers taking on that responsibility of supporting a client to make informed decisions and decisions that will help them get out of the dispute rather than inflame situations,” she said.

“And I think that comes from a lack of deep thinking amongst lawyers about the dispute and the drivers of the dispute. And so, at Resolve, we’re really trying to change that perception in the industry so that people are practising more responsibly.”

Ms Cocchiaro agreed – and added that clients tend to come to them for objectivity above all else.

“But too many lawyers are the voice piece for their clients rather than having those tough, reality-driven conversations with them. And it takes a really confident and strong practitioner to be able to do that with a client that maintains the client’s trust and continues that strong relationship. So, you really have to build that relationship first with your client of rapport to then be able to have that,” she explained.

“But once you do that, you find that you can really reality check your clients against what it is they think they might be wanting, and you can create some really good outcomes for them; that’s responsible lawyering. Otherwise, if all we do is just fight the fight for our client and are polarised in the way we support their case versus how their lawyer on the other side of the case is supporting them, we’re only just supporting and fuelling that conflict, and they’re looking to us for much more than that.”

While the profession still has a ways to go in making responsible lawyering a more mainstream way of practising, Ms Cocchiaro said it’s “definitely changing for the better”.

“If I compare where we are now from when I started [to] practise almost nine years ago, the confidence around exploring other options to negotiate beyond initiating any dispute with a court application is growing. And certainly, we’re getting a lot of support from the court in our area to encourage mediation, particularly as a way of resolving those disputes. So, I think that is improving. I don’t necessarily think that the lawyers and the mindsets of the lawyers are changing fast enough, in my view,” she added.

“I think that there’s a lot of work that can be done in changing the way the lawyers are considering that responsibility that they’ve got towards their clients and looking at it in other ways. I mean, quite simply put, when I started business, I was told by some well-meaning mentors that there was no money in litigation and that I was going to go broke and that perhaps I should consider different business opportunities. I couldn’t disagree more with where I’ve ended.”

However, this change is relatively slow-moving, quipped Ms Martin.

“I think there’s a discomfort in change amongst the profession, and it might just naturally be the type of person who becomes a lawyer. But you can see the discomfort in practitioners when you try to push the envelope and do something differently. And there are those out there who are sitting with that discomfort and know deep down that they are doing the best thing for their client, but then there are those who are not willing to embrace it,” she explained.

“I think we’re seeing a lot more of that change at the university level. So, we’re hoping that the future generations of lawyers will really change the way they practise. But while we’ve still got those lawyers who have been around for 40 or 50 years practising, and they’re not the ones who are going to change the way they’re doing it, regardless of the demand from the community.”

Pushing back on these older and more traditional attitudes is one of the biggest challenges Resolve is up against every day.

“We train our team to continue to challenge and be creative in the way they are interacting with the profession, to encourage them to openly change the way they’re negotiating with us. We call behaviour to account and really try to bring everything roundtable, hold people to account on their behaviour. But it is hard. One thing that has really surprised us is those mentors, perhaps that have supported the younger generation to believe that way,” Ms Cocchiaro said.

“And so, I think there’s a lot to do with being brave around, challenging and creating differences and change, which, again, maybe is the lawyers, the type of people that choose law that have got that kind of set personality? I hope it’s not, but it might be. And that’s the reason that it is slow to change. But all we can do is just be positive role models in the space and continue to drive our mission home and be as involved in boards and different organisations as we can.”

Moreover, Ms Martin advised that if lawyers in family law think that litigation is going to get them the outcome they want, “it just won’t”.

“Deep down, lawyers know that litigation never gets anyone a good outcome. I think every lawyer, regardless of age or experience, understands the impact and the negative impact litigation has. You can be strong and strategic in alternate dispute resolution, whether it’s mediation or collaborative practice, and you can still advocate for your client the way that you were taught at law school to advocate for your client, but it’s just in a place that’s more likely to get everyone an outcome,” she concluded.

“The family law system is broken, and our clients experience it every day. And it’s no secret amongst the profession that it’s a broken system. So, I think people know that litigation is not going to get their clients where they need to be, but pushing them into more appropriate ways to achieve an outcome. We just need more people doing it.”

The transcript of this podcast episode was slightly edited for publishing purposes. To listen to the full conversation with Rose Cocchiaro and Chanel Martin, click below:

Lauren Croft

Lauren Croft

Lauren is a journalist at Lawyers Weekly and graduated with a Bachelor of Journalism from Macleay College. Prior to joining Lawyers Weekly, she worked as a trade journalist for media and travel industry publications and Travel Weekly. Originally born in England, Lauren enjoys trying new bars and restaurants, attending music festivals and travelling. She is also a keen snowboarder and pre-pandemic, spent a season living in a French ski resort.

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