It is Good Divorce Week. In this period, we reflect on the ways that we can try to improve (as far as possible), the experience of families going through a relationship breakdown and using the family law system.
When thinking about this we often consider alternative ways of resolving family disputes such as mediation. However, there is another area where we can make a difference, whether a case is being dealt with by agreement or is sadly required to go through the Court.
As family lawyers, what we spend most of our time doing is writing. Whether that is advice to clients, documents for Court, or letters to the other party in the case and their legal representatives, huge numbers of documents are created. When we are not writing, we are often speaking, either to our clients or in the case of barristers, to a Judge when presenting the case.
There is, however, an increasing realisation among family lawyers that the way we write and speak needs to change. The law is a very traditional area, with practices established decades or even centuries ago. As lawyers, we train for years to understand the system.
Family law in particular, is full of technical wording and acronyms, used not just by the lawyers but all of the professionals working within the system, such as social workers, court advisers, and other experts.
However, the purpose of family law is ultimately to help families. If the language used within this is complex and inaccessible, does this really serve our clients and the families the system was designed for?
There are a number of things that we can do in order to try to improve the experience for our clients. As far as possible, we should ensure that the language we use is clear and easy to understand.
This is not about the intelligence of the people using the family courts or taking advice but more that there is no benefit to making matters unnecessarily complex.
If people struggle to understand what we are referring to, for example when we talk about Cafcass or FDRs, then they will feel shut out of the system, which makes it harder for them to have faith in justice, or sometimes even appreciate what decisions are being taken.
It is already a stressful time for our clients and having to remember which acronym means what while also considering their future and that of their children can be overwhelming.
Where it is possible to use plain English over technical language, this should be done. Particularly when drafting letters, whether to our own client or to another person involved, we should consider whether we can simplify matters.
When people start out in the law, it is a common mistake to use more complex language to try to sound authoritative. Ultimately however our goal is to serve our clients and it does not matter how impressive we sound if it is not easily understood.
The experience of family breakdown is stressful enough, and we should try to ensure that as family lawyers, we are not making it more complex.
As well as avoiding language that is unnecessarily complex, family lawyers should also be mindful of whether their language and tone is helping the family to resolve their issues constructively, or in fact risks inflaming tensions.
We often think that, compared to other areas of law, we deal with cases sensitively and try to avoid hostile language. This can be seen for example in the use of phrases such as ‘the other side’ rather than ‘opponent’ when talking about the other parent or spouse. However, even this language suggests the separating couple, or parents are on other sides of the dispute, which can help to entrench the adversarial nature of the disagreement.
As lawyers we should be trying to change the language wherever possible. We use it to ensure it is focused on the welfare of any child, or about reaching agreement, rather than positioning people on opposing sides.
People can find the family justice system depersonalising, with letters referring to ‘my client and your client’, and court cases even just referring to ‘husband’ and ‘wife’.
This can make them feel part of a process rather than dealing with their own specific problems. It can also make it easier for lawyers to slip into more hostile language.
It is often better, therefore, to use the names of the clients in letters, as well as the names of the children if relevant. This helps to remind everyone that individuals and families are the ones involved in the matter and keep the focus on solutions.
While there will always be cases that are complex or with conflict within them, as family lawyers we should do all that we can to ensure that, as we work to do our best for our clients, we consider the wider picture and make sure that our work does not inflame tensions or make a difficult situation worse.
Work is being done on this by the Family Law Language Project and the Family Solutions Group, and so I am hopeful that we will see a change in practice in the coming years.
Our specialist family and divorce lawyers can advise on all aspects of relationship breakdown. All of our lawyers are members of Resolution and are committed to taking a non-confrontational approach. For more information, or if you would like to speak with a member of the team, please contact us (Holborn: 020 3826 7526, Kingston: 020 3826 7527, Putney: 020 3826 7520) or complete our online enquiry form.