Wednesday, December 2, 2020 - 11:21

DISTRICT JUDGE LIM CHOI MING, MS ANGELINA HING ON MEDIATION AND MINDFUL ADVOCACY IN DIVORCE PROCEEDINGS

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An often-overlooked toll of COVID-19 is the one it has taken on families. Around the world, the need to “stay home, save lives” has created a combustible atmosphere, as couples find themselves bottled up at home with partners that they cannot get away from and kids that need more attention than ever. In fact, The Straits Times reported in June that some lawyers had seen more divorce inquiries during Singapore’s two-month circuit-breaker.

This brisk demand for divorce counsel means that family lawyers may sometimes run the risk of being overly clinical in their approach to clients. “I don’t think lawyers set out to be clinical. It could be a matter of being aware that given the volatility of the situation at home, every action or word might trigger an unintended reaction which may further escalate tensions. Such considerations are not strictly legal in nature,” reflects Ms Angelina Hing, Managing Director of Integro Law Chambers.

“Being a former District Judge at the Family Justice Courts (FJC) and having been married for more than 20 years, and a mother-of-two, has made me very aware of emotions and dynamics involved between a couple who is contemplating divorce. Hence during the first meeting, I spend about 70% of the time discussing matters that are non-legal in nature. These include living arrangements of the children during separation or post-divorce, financial constraints of one or both parties and even exploring if divorce is really the best way forward and the intent of the client”

Her deliberate approach to her family law practice is an example of mindful advocacy, a term that has caught on in many family law circles. District Judge Lim Choi Ming of the FJC has given the matter some thought and shares her view of what a mindful advocate is: “The mindful advocate is one who strikes a balance between knowledge of the law and a keen awareness of your client’s genuine concerns, needs and wants. The mindful advocate will also be aware that litigation, while more monetarily lucrative, is not necessarily the best route, emotionally or fiscally, for the family and its continued future.”

Giving up a case in these economic conditions might seem foolhardy, but Ms Hing insists that the fit between client and counsel is important. “When you’re representing a client, it is important that you are able to represent them in a manner that they are happy with. I would say that all of my clients would prefer to resolve matters amicably (if possible) and are receptive to tools like mediation as I advocate for them.”

MEDIATION’S WIN-WIN

Mediation, in particular, offers a range of benefits, shares DJ Lim. A key benefit is the sense of control that parties retain. She elaborates, “Both parties are able to make decisions for the family rather than ceding the control of such decisions to the judge. They are best placed to know what works for their family and when they have a hand in crafting the outcome of the case, there is more commitment to future care plans. The mediator will facilitate discussions to prompt parties to address their concerns and to reach sustainable solutions to these concerns. On the other hand, litigation tends to result in a win-lose situation, whereas mediation allows both parties to reach an acceptable compromise.”

Experience has also taught Ms Hing that mediation can provide clients with much-needed emotional catharsis. “At the end of the day, the adage that ‘everyone wants their day in court’ is somewhat true. These parties are hurting and they want a chance to be heard by  a person of authority; in this case, the judge in the mediation chamber.”

However, tools like mediation may be viewed upon with some trepidation, as clients may wonder if they are suitable for their circumstances. But DJ Lim shares that the FJC believes that most cases are indeed suitable for mediation. “That’s as long as the parties desire to participate in mediation, keep an open mind about their options and are willing to compromise on their wants for the sake of the family.”

But naturally, there are exceptions to the rule. “For example, where one or both parties do not wish to mediate or are determined that they will not compromise. Such cases are unlikely to result in a positive outcome through mediation. Litigation may then be a preferred option as a neutral judge will adjudicate and provide the parties with a decision that is just and equitable.”

Ms Hing agrees, adding that advocates should remember this. “Yes, we do want to avoid acrimony. But if the other party is too entrenched in a position then litigation would be the only other alternative so that parties can have closure of the matter through an adjudicated outcome.” As she knows all too well, getting parties to the mediation chamber can indeed be tricky. But lawyers do have the ability to sway their decision. If the other partner is surprised by a Writ of Divorce, he or she might be a lot less inclined towards a conciliatory mediation.

“So it starts with how the divorce process began. Did it begin on a conciliatory note or an aggressive stance such as a surprise service of court documents at the workplace? I think this is something that every lawyer dealing with divorce should set out to do: try to de-escalate the acrimony from the outset, and work with parties or the learned colleague on the other side to  come up with a workable set of terms such that the children are protected and parties can move on as amicably as possible and co-parent effectively.” .

 

Mindful advocacy and mediation are just some of the topics that will be discussed at SAL’s upcoming webinar series titled The Changing Landscape of Family Law Advocacy. The three-part series kicks off on Thursday, 10 December, with insights from DJ Lim, Ms Hing, Mr Rajan Chettiar (Managing Director, Rajan Chettiar LLC), Mr Lim Tat (Managing Partner, Aequitas Law) and Ms Michelle Png, Assistant Senior Counsellor at THK Centre for Family Harmony. Registrations for the three-part series are now open.

 

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