As well as (very) recently joining the Norfolk Resolution Committee, I have the great pleasure of being part of Resolution’s Parenting After Parting Committee, something I am very excited to be involved in.
At our last meeting, a few of us discussed the difficulties we experience dealing with problematic correspondence from other family lawyers, many of whom are Resolution members. I have on numerous occasions received an email and immediately thought, “well, that’s not very ‘Resolution’”.
We have all sent letters, whether in relation to finances or children, with a questionable tone under the guise of representing our client’s rights or supporting their position, but in general we must do better.
All too often we see children’s wellbeing suffer as a result of parental separation, even when it is the intention of both parents not to put their children in the middle. As family law practitioners, we spend a lot of time trying to instil in clients the importance of keeping communications with the other parent civil and to the point, not rising to any provocation and checking oneself before responding, being constructive and using positive language.
It strikes me as odd therefore that we are still sending and receiving solicitor correspondence that does not itself heed this advice, particularly when we have signed up to follow The Code of Practice.
It made me reflect upon potential reasons for this. Is it sometimes an overcompensation for a lack of experience or confidence, or a fear of appearing weak against an adversarial party? Perhaps it stems from the pressure of acting for a high-conflict or demanding client who is over-amending suggested wording. Or maybe some of it is simply the reality that old habits – and the language and culture that surround family law conflict – can take time to change.
Quite often, it may simply be our own emotions taking over and that is something we need to be aware of. I am not a psychology expert but recognise that I have been ‘triggered’ on a number of occasions and felt very indignant – both personally and on behalf of my clients – having received aggressive or accusatory correspondence.
I have found the best way to manage it is to close the email and take another look a little later once the indignation has receded (and my voice has returned from that place where only dogs and dolphins can hear me).
This is not always possible in the event of an extremely urgent matter, of course, but take as much time as you can before putting pen to paper (or fingers to keyboard). If you do not have time, draft your response but run it through a secure organisation-approved AI tool for tone-checking (removing any client data). It can be quite humbling to be told to get off your high horse by Copilot!
If you are not quite on board with AI yet, ask a colleague to cast an eye over it. Just as we may advise our clients to use a tone-checker before hitting send via a parenting app, we can, and often should, do the same. Rather than continuing with tit-for-tat correspondence, why not pick up the phone to the other party’s solicitor and discuss the issue: sometimes (where appropriate) it can be easier to get a point across verbally when tone of voice can assist with understanding the sentiment behind the message.
A conflict can often arise between acting in what the client believes are his or her best interests and adhering to the Code of Practice, including acting in the best interests of the children of the family (if you have not already read the FSG report “Putting Children First” which came out last month, I recommend it).
Balancing this can leave you feeling like good ol’ Stretch Armstrong: pulled one way by an aspiration to make things better for the family – and for family practice in general – and in the other by our desire to be the voice for our client, who may feel unheard, distressed or who has become deeply entrenched in the conflict. But then what if that is not in the best interests of the children of the family? It can be difficult to push back, and this is where further training is needed in some cases, but as with most things, comes with experience.
As Resolution members, we should be taking advantage of the Good Practice Guides. Many complaints Resolution receives relate to correspondence and communication, so not only does emotive and inflammatory language potentially harm a client’s case, with a knock-on effect on the children, it could also harm the writer’s (and their firm’s) reputation. As Resolution members we should be using these guides in our daily practice.
The first step to making a change, and the step we can easily take, is using the right language, such as the “other party” instead of the “other side” or “opponent”, or just their actual name. This changes mindsets over time and reframes an adversary to a fellow human being. None of this is new information, of course. In the FSG Language Matters report, Sir Andrew McFarlane said
“it’s blindingly obvious that the language we have been using is not appropriate and only goes to stoke the minds of those in a combative mindset, rather than direct them in a different way…The real change will come by each one of us thinking about it, and then changing practice”.
Reducing the heat of conflict between parents does not start and end with them: we, as practitioners and advisers, have a responsibility to ensure that we too are playing our part.
I am sure most of you reading this have this in mind day-to-day, but as a profession, we need to do better and take our own advice.
Louise Hardy, Senior Paralegal at Teelan & Silwal Family Law and member of the Resolution Parenting After Parting Committee and the Norfolk Resolution Committee
Read the Good Practice Guide to Communication
Read the Good Practice Guide to Correspondence
Find out more about our Parenting Through Separation Guide
