I think the insights of the Judge Nick was talking with and the sentiment of the extract are remarkably similar.

As I thing we have blogged before I appreciate everyone needs to earn a living but I don’t have to like the obvious duplicity and self protection that is needed to drive the current system.

The point of the extract was to try to succinclty explain that either by accident or design the current system of Family law is an exploitative mechanism which effectively funnels vulnerable people into an adversarial system which primarily serves the legal profession.
The legal professionals do not even need to be consciously aware and by dutifully adhereing to the rituals/codes of practice etc it works a treat.

Collaborative Law still requires two Solicitors working in a similar premise, ands smacks of reinvention rather than anything new.

I also agree with Familoo about objectivity. I’m not sure how easy it is for any of us to be entirely objective, or to be able to understand the point of view of another group within the system. A lawyer cannot begin to understand what it is to lose a child, and those who have experienced that are often affected far more severely than merely losing their objectivity.

Indeed, one of the obstacles to the equal parenting campaign is the extent to which many would-be campaigners are damaged. It is one of the reasons the F4J campaign was shut down. It is certainly not possible to campaign effectively while your case is ongoing.

Family solicitors and barristers come across as very defensive of their profession – which may be partially a result of the campaign against them. Judges – perhaps because their employment is more secure – are often more ready to discuss the failures of the system, and to acknowledge that there are failures.

In his recent address, for example, Mr Justice McFarlane recognises that the introduction of parental responsibility in the CA 1989 has not had the effect intended. He also points out that ‘private law disputes… are not, in reality, legal issues’. These are not the sort of things one finds barristers saying, and they are very refreshing.

The following is an extract from the Selfish Gene which In my opinion sums up Family Law very well.

Game theorists divide games into “zero sum” and “nonzero sum”. A zero sum game is one in which a win for one player is a loss for the other. Chess is zero sum, Because the aim of each player is to win, and this means to make the other player lose. Prisoners Dilemma, however, is a nonzero sum game. There is a banker payingout money, and it is possible for the two players to link arms and laugh all the way to the bank.
This talk of laughing all the way to the band reminds me of a delightful line from Shakespear:
“The first thing we do, let’s kill all the lawyers”
In what are called civil “disputes: there is often in fact great scope for cooperation. What looks like a zero sum confrontation can, with a little goodwill, easily be transformed into a mutually benefitcial nonzero sume game. Consider divorce. A good marriage is obviously a nonzero sume game, brimming with mutual cooperation. But even when it breaks down there are all sorts of reasons whey a couple could benefit by continuing to cooperate, and treating their divorce, too, as a nonzero sum. As if child welfare were not a sufficient reason, the fees of two lawyers will make a nasty dent in the family finances. So obviously a sensible and civilized couple begin by goping together to see one lawyer, don’t they?
We.., actually no. At least in England and, until recently, in all fifty states of the USA, the law, or more strictly-and significantly-the lawyers own professional code, doesn’t allow them to. Lawyers must accept only one member of a couple as a client. The other person is turned from the door, and either has no legal advice at all or is forced to go to another lawer. And that is where the fun begins. In separate chambers but with one voice, the two lawyers immediately start referring to “us” and “them”. “Us”, you understand, doesn’t mean me and my wife; it means me and my lawyer against her and her lawyer.
When the case comes to court, it is actually listed as “Smith versus Smith”! It is assumed to be adversarial , whether the couple feel adversarial or not, whether or not they have specifically agreed that they want to be sensibly amicable. And who benefits from treating it as an “I win, you lose” tussle? The chances are, only the lawyers.
The hapless couple have been dragged into a zero sum game. For the lawyers, however, the case of Smith v Smith is a nice fat nonzero sum game, with the Smiths providing the payoffs and the two professional milking their clients joint account in elaborately coded cooperation. One way in which they cooperate is to make proposals that they both know the other side will not accept. This prompts a counter proposal that, again, boh know is unacceptable. And so it goes on. Every letter, every phone call exchanged between the cooperating “adversaries” adds another wad to the bill. With luck, this procedure can be dragged out for months or even years, with costs mounting in parrallel. The lawyers don’t get together to work all this out. On the contrary, it is ironically their scrupulous separateness that is the chief instrument of their cooperation at the expense of the clients. The lawyers may noteven be aware of what they are doing.
Like the vampire bats that we shall meet in a moment, they are playing to well-ritualized rules. The system workes without any conscious overseeing or organising. It is all geared to forcing us into zero sum games. Zero sum for the clients, but very much nonzero sum for the lawyers.
What is to be done? The Shakespeare option is messy. It would be cleaner to get the law changed. But most parliamentarians are drawn from the legal profession, and have a zero sum mentality. It is hard to imagine a more adversarial atmosphere that the British House of Commons. The law courts at least preserve the decencies of debate. As well they might, since “my learned friend and I’ are cooperating very nicely all the way to the bank.
It is fair to add that a few lawyers play exacly the opposite role, persuading clients who are itching for a zero sum fight that they would do better to reach a nonzero sum settlement out of court.

By accident or design the current system of Family law effectively sets up two vulnerable individuals in a protracted and largely unnecessary fight with plenty of stock phrases and noble ideas to support it.

Of course I can’t completely rebut your suggestion that the financial reward of the job prevents us lawyers from being completely objective: even the most noble of us want to remain in a job. However, it is fair to say that in many respects there is no incentive for us in stringing out a case that ought to be capable of compromise, particularly in publicly funded work where we are positively incentivised to settle or resolve speedily, and where even without settlement supplements we can often get paid just as much for a very short time spent at court sorting out a consent order as we would if we messed about contesting it. From a selfish rather than client led point of view I think you would find that most advocates would rather settle that which is capable of settling either to avoid a bad loss at the subsequent contested hearing or to free up the diary for something else which may be better paid or more legally interesting. But notwithstanding all of that I understand why some would view my opinions with caution. For my part I try to absorb a wide range of information and views, not just those who are saying the same as me (that would be dull and pointless). I would hope that others would do the same. I don’t see the voices ‘out there’ as us and them (disgruntled parents versus lawyers). We all have something to offer. Hopelessly relativist I know, but that’s my perspective.

I don’t think there is any shame in standing by instructions as you suggest. It is the client who at the end of the day determines the course which is taken, whether in wisdom or folly. If we did anything other we would surely be subject to criticism – the whole purpose of our instruction is to ensure that the party’s position is capably set out no matter how foolish or weak or cantankerous it may seem. Many a wrong decision would have been left unchallenged or a miscarriage left unrighted if it were not so.