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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)