What If We Project Managed Family Law?
What If We Project Managed Family Law?
I have been feeling a little frustrated lately.
Not necessarily with anyone in particular (which is always a good start!), but with a process that I seem to find myself watching play out over and over again in family law matters. And the more I watch it, the more I keep thinking there has to be a better way.
It usually happens at the beginning of a matter.
The beginning of a family law matter is, almost by definition, messy. There are two people who have shared a life and who are now trying to work out how to untangle it. There are houses, mortgages, bank accounts, children, businesses, school arrangements, credit cards, investment properties, pets, furniture and all the other practical pieces of a life that don’t suddenly organise themselves neatly just because a relationship has ended.
Then, once lawyers are involved, we add another two humans to the mix. So now we have four people, all with different information, different priorities and often very different ideas about what needs to happen first.
And I think this is where things can start to go a little sideways.
Because really, the beginning of a family law matter is a planning phase. We are trying to understand the problem before we can solve it.
In a property matter, that usually means gathering information and documents so that we can build a balance sheet and understand the financial picture. We need to know what exists, what it’s worth, what is agreed, what isn’t agreed and what we simply don’t know yet. In parenting matters, the information might be different, but the process is much the same. What is happening now? What is working? What isn’t? What are the immediate problems? What information do we need before sensible longer-term decisions can be made?
None of that is particularly controversial.
The part I have been wondering about is how we do it.
The very slow conversation
Traditionally, once lawyers are involved, much of this early work happens through letters.
Now, I am a lawyer. I understand letters. I have written thousands of them and I am certainly not suggesting we should never write another one. But increasingly I find myself looking at some of the correspondence that happens in the early stages of family law matters and thinking:
This is actually just a conversation.
Except it is a conversation being conducted in possibly the slowest and most expensive way imaginable.
I had a matter cross my desk today that is a perfect example.
There is an investment property. There is rental income coming in. There are expenses going out. And right now, while the bigger property settlement is being worked through, someone needs to receive the rent and someone needs to pay the mortgage, utilities and other expenses.
It is a practical problem that needs a practical answer.
But once we put that question into the traditional family law process, it can become something much bigger. One lawyer writes to the other lawyer. That lawyer sends the letter to their client. The client considers it and provides instructions. The lawyer responds. The response raises another question, so that goes back to the first lawyer, who sends it to their client, who provides more instructions…
And before we know it, two or three weeks have passed and we may still not actually know who is paying the electricity bill.
Meanwhile, both clients have paid for all of those letters.
This is the part I am finding increasingly difficult to reconcile.
Because the letters themselves aren’t necessarily bad. The lawyers aren’t necessarily doing anything wrong. Everyone is working within a system that has developed over a very long time.
But I keep wondering whether we are sometimes using the wrong tool for the job.
Because there are actually four different projects happening
When a family law matter begins, the two clients are rarely moving at the same speed.
One person might have been thinking about separation for two years and has spreadsheets, bank statements and a very firm view about what should happen next. The other might still be trying to understand how their life changed so dramatically last Tuesday.
One might be focused entirely on money. The other might be worried about the children.
Then we add the lawyers, who also have their own tasks and priorities. One might be trying to get the disclosure together while the other is focused on resolving an urgent parenting arrangement.
So although we talk about “the matter” as though it is one thing moving neatly along a path, in reality there are multiple humans moving at different speeds, with different information and different priorities.
And perhaps this is why I have started thinking about family law less as a sequence of legal steps and more as a project management problem.
If this were any other complicated project, we would probably start by working out what needs to happen now, what information we need, who is responsible for getting it, what can wait and when everyone is coming back together to make the next set of decisions.
We would break the giant problem into smaller pieces.
But in family law, we have a tendency to keep the whole giant problem alive at once, often through correspondence, until eventually we reach the point where everyone decides it is time to mediate.
And I wonder whether we’ve got that bit backwards.
Perhaps mediation doesn't need to be the grand finale
I love collaborative practice because, among many other things, it solves this particular problem really well.
Instead of spending weeks writing backwards and forwards, we get the clients and their professional team together and talk. We work out what we know, what we don’t know, what needs to happen next and who is going to do it. Then everyone leaves the meeting with a plan.
But I also live in the real world of family law practice, and I know that most matters aren’t collaborative matters. Not every client wants to use the collaborative process, not every matter suits it and not every practitioner is interested in working that way.
So lately I have been wondering whether we can take one of the things that collaborative practice does so well and use it in ordinary family law matters.
And I think we can.
Through mediation.
Not necessarily the traditional “everyone arrive at 9am and nobody leaves until we have a settlement” mediation, but shorter, staged mediations used throughout the matter to actually manage the project.
Imagine, for example, that early in a property matter we scheduled a two or three hour mediation.
We aren’t there to settle the property matter. In fact, we might be nowhere near ready to do that.
We are there to sort out what needs sorting out now.
In the matter I mentioned earlier, that might mean deciding who receives the rental income, who pays the mortgage and expenses, what happens if there is a shortfall or surplus, and whether there are any other immediate financial issues that need an interim arrangement.
Then we could turn to what information is missing. Perhaps we need bank statements, tax returns, superannuation information or a valuation. We can agree who is getting what, by when, and what will happen once it arrives.
And then — this is the really important bit — we set the next date.
Everyone leaves knowing what they are supposed to do and when they are coming back.
To me, that feels enormously different from sending another letter and waiting to see what happens.
Then we do it again
Perhaps four or six weeks later, we have mediation number two.
By then, the immediate problems have hopefully been dealt with. The information has been gathered. We know more than we did the first time.
So now we can ask: where are we up to?
Maybe the balance sheet is almost agreed but there are three values still in dispute. Great. What do we need to resolve those?
Maybe we need a property valuation. Who is going to arrange it? Which valuer are we using? What instructions are they receiving? Who is paying the fee?
Maybe we have enough information to start talking about settlement or perhaps we don’t. Either way, we make the next set of decisions and move the project forward.
Then, if we need it, we have mediation number three.
And perhaps that one is the mediation where we can actually resolve everything.
But if it isn’t, I don’t think that means the process has failed.
That is probably the part of this idea that I feel most strongly about.
We have developed a strange idea in family law that mediation is successful if the matter settles and unsuccessful if it doesn’t.
But if two or three shorter mediations mean that the clients have sorted out their immediate financial arrangements, completed disclosure, agreed most of their balance sheet, obtained the valuations they need and narrowed the real dispute down to two or three issues, surely that is success too?
Particularly if the alternative was three months of letters trying to achieve the same thing.
There is a cost to not knowing what happens next
Of course there is an obvious financial argument here. Letters cost money. Instructions cost money. Reviewing responses costs money. Going backwards and forwards over the same issue costs money.
But I think the bigger benefit might actually be the reduction in uncertainty.
One of the hardest things about separation is that suddenly almost everything feels uncertain.
Where am I going to live? What happens with the children? Can I afford to keep the house? What will my financial future look like? How long will this take? How much will it cost?
Then we put people into a legal process where they often don’t know what happens next either.
They receive a letter. They respond. They wait. Another letter arrives. There are more questions. They respond again. They wait again.
And at some point I think clients understandably start asking: When does this end?
To be fair, there are moments as a lawyer when I have looked at a file and wondered the same thing.
Which is why the project management idea keeps coming back to me.
Perhaps every family law matter needs a really simple framework:
Now. Next. Later.
What needs to be dealt with now?
What do we need to do next?
And what can sensibly wait until later?
Not everything needs to be solved today.
But everyone should probably know what they are doing next.
Maybe we just need more conversations
I don’t think this is revolutionary.
And I certainly don’t think it means we throw out correspondence, traditional negotiation or any of the other tools we use every day in family law. There will always be things that need to be recorded in writing. There will always be matters that need detailed legal argument. And there will, unfortunately, always be matters that need the Court.
But there are also a lot of things that just need a conversation.
A structured conversation, with the clients there, their lawyers there and someone helping everyone stay focused on the decisions that actually need to be made.
Maybe that happens twice.
Maybe it happens three times.
Maybe after all of that we still don’t have a settlement and we need to take another path.
But at least we have been deliberately moving the matter forward rather than allowing it to meander through correspondence without any real sense of where the next milestone sits.
And perhaps that is the question I want us to start asking more often.
Not:
“Are we ready for mediation?”
But:
“Would getting everyone in a room for two hours move this matter forward?”
Because sometimes the answer might be no.
But increasingly, I suspect the answer is yes.
And if the choice is between that and another six letters about who is paying the electricity bill, I know which meeting I’d rather be in.
About the Author
Clarissa Rayward is an Accredited Specialist in Family Law and Director of Brisbane Family Law Centre. She is also the founder of Happy Lawyer Happy Life, where she works with lawyers across Australia to design practices that are sustainable, humane and commercially sound. Clarissa regularly presents on collaborative practice, lawyer wellbeing and innovative legal systems design.
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