Divorce discussions – be careful what you say, by Family Law in Partnership director James Pirrie

Well my lawyer says …

This phrase has been a rock on which many negotiations have run aground, whether they are of the kitchen table or at mediation variety.  The discussions are getting sticky and so someone falls back on a ‘rights-based’ approach to problem solving (which is usually followed by each side doing it – the move is instinctive and nearly irresistible).  This is of course based on the idea that an outcome must be fair if it is in line with what the court would do.

This strategy, though, isn’t permitted at court without some serious and expansive follow-up:

• The first principle is that discussions between clients and lawyers are privileged from disclosure (ie. they are generally held secret between the client and the lawyer).
• But if someone wants to quote what they said to their lawyer or their lawyer said to them to justify some stance or another in the litigation then the rules are that you have to produce the full run of correspondence for examination.

This is what was under the microscope this month (July 2020) in a case before Mr Justice Cohen. A wife was arguing that the marriage had broken down relatively recently and was saying that it was lawyer-error that led to it being suggested in court documents that this had happened far earlier.

The legal principle is this: “the opposite party and the court must have an opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood.”

The husband’s legal team asked for the whole of the file to be produced – ultimately, it was all the documents which related to this issue – but it supports the idea that you want to be very careful indeed (at court at least) about quoting from the past to and fro between you and your lawyer to try and help you get home with your case.

In mediation or negotiation, the ‘quoting lawyers strategy’ is seldom helpful:

• what did the lawyer understand was the factual situation?
• what exactly did the lawyer say and with what caveats?
• did the client receiving this information have one of those selective auditory or memory traits of hearing rather more of the good stuff than the risks anyway?
• and then is it being honestly and accurately reproduced?

In mediation, we usually try to steer clients away from the dialogue around legal advice:

• first because generally we don’t want to know it;
• secondly because there is no easy way of testing it (beyond say calling in the legal teams – we can do this) but more importantly;
• it will usually take us away from the productive work of helping the clients to work out the solution that will work for them:

In mediation as in most other forms of away-from-court negotiation, we are not simply seeking to “ape” what the court would do (with the benefit of the service being no more than doing it more quickly and cheaply than would the court).  These negotiations offer an opportunity to reach an agreement that works for the family – where a complex series of trades around preferences and creative ideas can generate solutions that are better for each side than what they would be left with after a court hearing (and that is not just because of the toxicity, cost and delay of the court … the outcome crafted by the parties can be authentically better than the court generated solution.

Here then, we see the court option is more the safety net for families that can’t reach agreement.  Yes of course as we negotiate we should be mindful of what the court says: it is the shelter under which our discussions take place.  But there is no requirement to adopt court-thinking in finding the conclusions that will work best.  This is never clearer in parenting matters, where the court generally slowly delivers fixed and firm-edged outcomes when what families generally need are immediate, flexible and developing solutions. But the phenomenon often applies in looking at financial issues too.

So if you are talking things out in mediation or just around the kitchen table and you are faced with a “well my lawyer says…” move, you may (shaded by a branch of legal principle) ask for the full note of the conversation quoting AG v VD [2020] EWHC 1847.  But you may just want to say “very interesting … but shall we now get back to the business in hand of trying to work out solutions that work for us rather than the lawyers?”

James Pirrie is a director at Family Law in Partnership. James specialises in complex financial issues and non-adversarial and cost-effective approaches to divorce and separation including mediation, arbitration and collaborative law. He helps clients take control of the issues that affect them, clarifying priorities, exploring all the options and identifying the best way forward. Contact James at E: jp@flip.co.uk or T: 020 7420 5000.

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