Thinking Outside the Square: the

role of lawyers at Roundtable

Dispute Management.

Allie Bailey, RDM, Victoria Legal Aid, October 2012

The Role of Lawyers in RDM

Research Aim: To Explore the Role of Lawyers in RDM.

Method:

Client Surveys (N = 50) (April - June 2011)

Chairperson Surveys (N = 9)

Lawyer Surveys (N = 63) (29 VLA & EXT, 5FLLS)

Conference Observations (N = 5)

What lawyers said…

Lawyers believed in lawyer-assisted FDR

Lawyers were committed to RDM model

Lawyers valued collaboration

Lawyers balanced client interests with Best Interests of the Child

Pre-conference Role

Screening for complex issues

Explaining RDM process

Preparing client for conference

Reviewing client proposals

Provide additional referrals

Conference Role

• Legal advice (70%)

• Client support (37%)

• Appropriate agreements (32%)

• Reality testing (29%)

• Advocate for client (27%)

• Assist RDM process (22%)

• Drafting agreements (14%)

• Child focus (10%)* (VLA lawyers only)

Clients were…

• Not all screened for complex issues (43%) (P1 – 80%) (PF – 70%)

• Well prepared (83%)

• Clear about their proposals (88%)

• Were advised about reasonable proposals (93%)

• Advised them about the Family Law System (88%) and the Family Law Act (BIC, ESPR) (93%)

What Clients Thought of Lawyers Contributions

• “There was never one time when she did not allow me to answer a question”

• “When I was going overboard, he gave me these looks. I could’ve very easily walked if the lawyer wasn’t there”

• “He gave me ideas, commented on my ideas, challenged my ideas. He was very good”

• “[My lawyer] would take into account both of our interests and considered the best interests of the children”

Clients felt

• Encouraged to participate

• Supported – their lawyer understood their context

• Listened to in terms of views/wishes

• Reality tested

• Encouraged to find client and child appropriate arrangements

Roundtable Dispute Management

• Disadvantaged client group, with complex issues

• Resolving parenting (and property disputes)

• ‘Hybrid’ mediation service:

– Facilitation by chairperson– Conciliation/authoritative approach– Legal representation (at least one party)– Case management

The Role of Lawyers in Family Relationship Centres

• “An aim of the Government’s family law reforms is to change the culture of family breakdown so that parenting issues after separation are seen primarily as relationship rather than legal issues. However, the Government recognises that legal issues arise in this context” p46

• Centres are encouraged to build links to legal services

• Clients are encouraged to seek legal information and advice

• Lawyers may or may not be present in the mediation

• (AG Department, Operational Framework for FRC’s, 2011)

Spectrum of Lawyer Involvement (Rundle 2009)

Absent Advisor

Advisor Observer

Expert Contributor

Supportive Professional Participant

Spokes-person

Less Involvement More Involvement

Absent Advisor

• Assists the client to prepare for ADR but does not attend

• Suits clients with high capacity and willingness to participate

• Least expensive (for clients) and time intensive (for lawyers)

• Legal advice is not as timely, and is only based on client information

• Family Law Council guidelines accord with this model

Advisor Observer

• Lawyer observes but does not advise unless in private session with client

• Key contributions, as for absent advisor plus:– Discuss and clarify role of lawyer and client in mediation– Cost effective for client– ‘On the run’ and up to date information and legal advice– Follow client conversation and provide support

• Limits lawyer role to observer, unable to share legal opinion with all participants

Expert Contributor

• Role is that of expert in law

• Lawyers do not negotiate on behalf of their clients

• Parties determine agenda/issues

• Same as advisor observer plus:– Participatory role for lawyers– Lawyers exchange legal opinions– Reality testing with clients

• Lawyer contribution does not include non-legal roles

Spokesperson

• Lawyer as spokesperson for client in conference

• Parties observe while lawyers and chair participate

• Useful if there are capacity or power imbalance issues

Supportive Professional Participant

“The supportive professional participant works with the client to

prepare for the mediation and supports the client through

the mediation process, by working collaboratively towards

an acceptable outcome. They lawyer and client work as a

team, maximising the strengths that each of them brings to

the process” (Rundle, 2009:225)

Supportive Professional Participant

Lawyer Contributions Client Contributions

Providing advice based on information shared at mediation

Presenting individual views of dispute

Application of legal arguments through discussion with other lawyer

Discussing issues, including non-legal ones, with other party

Support and coaching client in negotiation and communication skills

Negotiating with the other party, together with the lawyer

Reality testing alternatives to settlement with the client

Generating imaginative options, proposing settlements, deciding outcome

Reality testing workability of settlement proposals

Speak about background issues from personal experience

Assisting with drafting an agreement Seek support from lawyer about drawing up agreement

Carefully negotiate workings of collaboration with client

Use lawyer as resource for legal advice and support/containment

Support client throughout the process (managing process)

Discuss with lawyer ramifications of outcomes and alternatives to agreement

Supportive Professional Participant at RDM

• Chairpersons can also be seen as part of this collaboration, a theme that was highlighted by all participants in this study.

• The role of the Chairperson can include:– Drawing on lawyer expertise

– Bringing lawyers together to discuss legal issues

– On-going assessment (with lawyer) of client capacity

– Clarifying, containing and assisting the clients to participate

– Drawing on lawyers to provide reality tests to clients about possible legal outcomes

– Reality testing workability of proposals (non-legal) and maintaining agenda of issues for discussion

– Review drafts for clarity and workability as required

– Encourage client/lawyer collaboration and utilise lawyer as resource for client as required

– Facilitate/manage the dispute resolution process to support all parties, manage power imbalances and ensure safety for all.

Supportive Professional Participant Model

“Supporting the client to actively participate in the negotiation process.

Also, advising the client as to the reasonableness of their wishes,

and what a Court might say about certain matters that are under

negotiation” (external lawyer, survey no. 20)

“Through the collaborative contributions between the lawyer, the client,

[and the Chairperson], the conference can “become a professional

brainstorming session with increased likelihood of creative options

for resolution” (Rundle, 2009:226)

Contributions Lawyers Make

• “Negotiation, problem solving, thinking outside the box”

• “I try to empower the client”

• “Assisting them to consider things from their child’s perspective”

• “Providing advice on proposals”

Clients with Complex Issues

“When dealing with these types of issues… it requires

everyone to think outside of the square in order to ensure

that children are safe and that the affected party/ies are

supported in their endeavor to resolve the parenting

dispute” (external lawyer no. 21)

Role of the Chairperson

“Chairpersons in my opinion are experienced and

informed lateral thinkers. They will often provide a client

a useful third party perspective that can help a client see

beyond a road block” (VLA lawyer survey no 29)

Chairs Perception of Lawyers Role in RDM

Chairs and lawyers were perceived as having ‘complimentary skills and roles’, which Rhoades identified as facilitating positive cross-professional collaboration (2005)

Valuable skills and knowledge included:– Knowledge of the Family Law System (inc. current judgments,

skilful drafting of agreements)

– Knowledge of RDM process and preparing clients for conference

– Excellent communication skills (inc. empathy, client management)

– Mediation and negotiation skills (child and resolution focused)

– Knowledge of child development/separation issues

– Knowledge of complex issues and their impact on client capacity

Chairs Perception of Lawyers

Key contributions by lawyers included:

– Supporting/preparing clients with complex needs

– Non-adversarial practice/compromising

– ‘Legal coach’ – walking with their client

– Empowering vulnerable parties/containing challenging

clients

– Re-enforcing hard messages/reality testing

– Child focused & age/stage appropriate outcomes

– Well drafted agreements

– VLA grants & the family law system in which RDM operates

The Value of Lawyers in FDR

“I would have to say that the lawyer-assisted conferences are by far more

productive and more likely to produce an outcome. Feedback from the

lawyer is immediate and a clients thinking can be challenged

immediately, whereas without lawyers, clients often over-inflate their case

and have little checks and balances… given a choice I would opt for

lawyer-assisted every time”

“I believe that lawyers help vulnerable parties negotiate agreements that

assist their clients and importantly, the best interests of their children”

“I now view having lawyers present as a critical component of the service

and I now rely on their skills and experience to assist me in the process…

all this leads me to wonder if there should be annual occasions where

RDM chairs and lawyers get together to discuss common issues”

(RDM Chairs)