My clients and I open the door to the creative problem solver within them, their ex and their ex's lawyer...
Is it a good idea to ask your lawyer to write you a letter to your ex?
I am very glad to welcome Mary Shaw, accomplished lawyer and mediator based in Newcastle. We both currently serve on Resolution’s DR Committee.
So, Mary how many times have you been asked, ‘Can you just write me a letter?’ What do you usually say when asked?
Mary: Well Jo, thanks for inviting me to chat with you about this. Its lovely to be asked.
In order to answer this question, I think I need to go back in time (and this is going to make my toes curl at the thought) to when I thought that our then standard tool - the letter- was a sound one for negotiation, for sorting things out for separating couples and that we used it to keep people out of court.
In retrospect (and I have a lot of that as I qualified in 1984) it was never a good tool for a number of reasons- but it was what we all did as family lawyers and so clients never had to ask me to do it. It just happened.
Then in the early noughties I undertook my Collaborative Practice foundation training and that was a Damascene moment. That opened my eyes to the possibility that I could be truly and deeply helpful to clients and their families in so many ways and at different levels. It wasn’t just about the terms of the outcome; it was about how the quality of the outcome and how it had been achieved left that family for the future. I suppose that’s when I began to change how I worked with lawyer colleagues- but it was slow because most lawyers were still sending letters backwards and forwards.
My mediation training accelerated my curiosity about how I could offer clients more and better: it was during the process of refining and developing my MIAM meetings that I really began to try to impress upon my MIAM clients that the one process that they shouldn’t spend time and money on was negotiation by letter. In other words, if a conversational/round table process wasn’t possible for any reason then court or arbitration would be preferable to negotiation by letter.
Then one day some years back I parted company with a client (nicely!) because they wanted me to negotiate by letter and I told them that in my view it was futile and I would be taking money off them to do something which wouldn’t get them what they wanted- an early settlement at low cost. I had suggested mediation, collaborative practice and round table meetings as options which would keep their case out of court but they didn’t want to explore any of those. However, they were very clear that they didn’t want to go to court. They told me they wanted me to write letters. I explained the reasons why I thought we would be wasting time and money and making things worse and I found myself saying “I no longer attempt to negotiate by letter as in my experience it’s a lousy way to try and sort things out for clients” - and a philosophy was born. I have never gone back on that and I now train solicitors on not negotiating by letter.
Jo: It’s uncanny that we have had such a similar journey to the same conclusion. What people don’t realise is the cost attached to instructing solicitors to ‘write a letter’ and act for them in the traditional way. The cost is financial, emotional and the future of their family.
I’ll deal the financial cost. That one letter, which is really and mostly just a prelude to a court application is very costly indeed. It might look like this if the lawyer charges £280 per hour + VAT.:
Meeting with the client to take instructions on the letter: 1 hour £280
Preparing a draft letter: 1 hour (or more) - £280
Emailing letter to client: 1 email - £28
Client emailing back with amendments – 1 email in - £14
Solicitor making amendments – 18 minutes - £84
Solicitor emailing back with draft for checking- 1 email out - £28
Client emailing back to confirm the letter may be sent - £14
Solicitor sending the letter - £28
Estimated cost - £756 + VAT of £151.20 = £907.
At this point remember, absolutely nothing has changed.
The receiving party then spends the same to reply.
This swapping of letters (solicitors call this correspondence) until one party gets fed up and decides to simply go to court. At that point they may have spent many thousands of pounds and got exactly nowhere.
Mary is this a fair summary of possible financial costs? What do you think the emotional costs of this approach are?
Mary: I think the point that you make, Jo is a very good one. Even if letter prep isn’t so long – say in a children case where the issues are perhaps less detailed – the “Ping-Pong” of letters can really stack up. The way that costs can mount up in the toing and froing of letters can astound and baffle clients -and quite often their solicitors! I have heard solicitors say “Well my fees on the clock are X but we haven’t really got anywhere so I can’t bill that much.” It’s a lose-lose on cost/benefit for clients and their solicitors alike and increases the risk of complaints which are lousy for both client and solicitor.
The emotional costs are wide-reaching and come at you from all directions- Shall we try and identify them, Jo?
No.1: Letter negotiation tends to drag out interminably and is pretty directionless. This leaves separating couples in an emotional “waiting room” for much longer than they need to be. And we both know that that place is horrible - exhausting, scary and very stressful. Over to you!
No. 2: Yes, it’s horrible anticipating not only the response back but the other person’s possible reaction to receiving the letter. The sender might think, ‘What will they be like when I see them next?’ This stress is not only experienced by the sender but the receiver both. Even if the other person isn’t instructing a solicitor (a litigant in person.) Try and imagine what it is like to receive a letter or email from a solicitor. The reaction is likely to be worry and concern at the very least. Maybe even outright anger. No one likes to receive a letter from a solicitor. Even the kindliest and sensitively written letter can strike fear into the reader. The truth is that many solicitors have trained over many years to try and get a letter ‘legally’ right. But the truth is that won’t matter much to the person receiving it. Next?
No.3: Written communication isn’t nuanced because you can’t hear tone of voice or immediately ask for clarification if you don’t understand something. Instead you can be left stewing – or worse, a cross reply gets lobbed back
No.4: Which neatly leads into this one - letters as weapons. If the temperature rises and the language becomes more conflictual and ultimatums are dished out with time limits then letters can literally make people ill. The letters can simply propel people into court rather than any sort of “Hadn’t we better talk about this?” scenario.
No.5: A biggie- letters inevitably create positioning and for two people who want different things to sort things out they need to find their mutual common ground- so letters pull people in the wrong and often opposite directions.
We could go on, couldn’t we, Jo?
Jo: Yes. So, far so bad.
To summarise our thoughts so far. Writing a letter is likely to make things worse not better and the costs – both emotional and financial, quickly mount up.
Mary: I think that mostly the problem is that people in the throes of separation are desperate for something to happen and asking a solicitor to write a letter can feel quick and easy (and low cost) but it is never any of these things. If it were the letter wouldn’t be needed because they could solve the problem directly.
Jo: Yes. They feel upset, maybe angry and want action. But my view is that action, at the wrong time, may in most circumstances (but not all, so take advice!) is the worst thing that can happen.
Mary, in our next blog shall we talk about the ‘first meeting with your solicitor’…...?
Mary: Yes, why not- or the dangers of “bestism”, perhaps?
Jo: Oh, my goodness yes, let’s do both.
Mary Shaw is a Partner at David Gray Solicitors LLP in Newcastle upon Tyne and works with people anywhere online.