Simon Goldring and Lydia Fowler consider what makes people litigate or choose to avoid it when it comes to private client and family disputes.
Private client and family disputes are often highly emotive. They centre around personal issues that usually signify (at least at the start of the process) the end of something, i.e., a death, a divorce or separation. So, what is the psychology that drives the litigation?
Often, despite the emotional and financial costs of litigation, it persists due to complex psychological factors rooted in emotion. When marriages dissolve or when people die or fall out with their family, parties are often going through a process similar to the five stages of grief. There can be a lot of hurt, anger, and contempt, and these feelings can override rational decision-making, transforming legal proceedings into battlegrounds for unresolved relationship conflicts. The adversarial nature of traditional litigation can amplify these feelings, as each side seeks validation and vindication from what they see as the ultimate adjudicator, “the Court”, rather than practical solutions.
Control and fear also often become central to a matter. Save for those who love high-adrenaline sports, it is human nature to feel uncomfortable when not in control. After experiencing the loss of control inherent in a marital or relationship breakdown, individuals may use legal disputes to regain a sense of agency, even when prolonging conflict ultimately harms their interests. Akin to having control is the fear of not having it, i.e. individuals may fear financial insecurity or parents worry about not seeing their children. A good outcome in family disputes is often a situation where neither party will be a hundred percent happy, but these anxieties can make a reasonable compromise feel like dangerous capitulation.
So, on the other side of the coin, what causes people to avoid litigation and settle? All the emotions that lead to a litigious case can also cause people to want to walk away from litigation as soon as possible. Some people avoid disputes due to conflict aversion, financial constraints, or power imbalances. Victims of domestic abuse may fear escalation, while others lack resources for adequate legal representation. Equally, if there has been acceptance that a marriage is over or a death has happened, then often settling the financial arrangements and/or child arrangements are the last administrative pieces that need to be dealt with and there is more consciousness around not wasting too much time, money, and emotional well-being sorting the practicalities.
There is a push in the family and chancery courts toward non-court dispute resolution, and this should be taken seriously. But often it will only work if there has already been some acceptance of the circumstances. Equally, when contemplating tools like mediation, practitioners are alive to whether it is appropriate in the context of power and control, as it can be used by the strong party as a means by which to assert dominance and control.
Understanding the psychology of an individual and the dynamics of everyone involved in a dispute (both historic and present) is essential for practitioners, as it is integral to every part of a litigation and/or settlement. Every decision made in litigation, even down to the choice of lawyer, feeds into the eventual outcome of a case. Therefore, understanding a client’s conscious and unconscious mind, along with their underlying motives, is paramount in helping individuals and families navigate private client litigation constructively.
Private client and family lawyers often perform a role of both confidant and lawyer – being alive to the emotional turmoil an individual is going through is paramount to ensuring that the best outcome possible is achieved (both financially and emotionally, which can even be walking away).
