In my opinion, no lawyer should talk about amicable divorce/separation until they understand what that means and how it can be achieved. Any lawyer who is writing letters that look like the following example, should perhaps remove ‘amicable’ from their vocabulary.
I am instructed on behalf of your husband/wife/partner, who wishes to reach an amicable settlement.
It is alleged that…..(fill the blank)
You have failed to…..(fill the blank)
My client has a legal right to.….(fill the blank)
Your behaviour..…(fill the blank)
Within seven days of the date of this letter you must…..(fill the blank)’
Any normally sensitive person receiving a letter like this might feel like they’d heard from a smiling assassin.
My observation is that ‘amicable’ is the new black amongst family lawyers, but I think its time to call the profession on its use of the word. Oxford likes to define amicable as ‘Characterized by friendliness and absence of discord’. I like to define ‘amicable’ letters such as the above as ‘unfriendly and likely to increase discord’.
So why do lawyers offer ‘amicable with threats’ as a service?
Some of my theories are that:
- Genuine peacemakers have increasingly gone into print and social media, so clients are now actively seeking amicable settlements, and ‘amicable with threats’ is the lawyer’s response to that demand;
- Lawyers have priced themselves out of the litigation market, and are now scrambling to engage clients on the basis that amicable settlement is part of their regular practice;
- Lawyers who write ‘amicable with threats’ letters are unable to adapt to settlement techniques that are not backed up by threats to use the force of the law;
- Lawyers feel that a genuinely amicable approach will look weak or is not really their job;
- Clients approve these letters because they are not coached to understand that they are counter to their real interests, even if there is temporary satisfaction in blowing off steam;
- Many lawyers remain convinced that separation is about the law, so legal solutions are the only ones they can see, however well clothed with ‘amicable’ their correspondence might be.
In the interests of families and of consumer protection, lawyers need to change their language so their clients know what they are really getting, and what harm can come of careless aggression, with the added insult to the recipient of being told that, on the other hand, this is intended to be amicable.
If lawyers are merely suggesting divorce without court, they should say so.
If they are suggesting an amicable divorce, they can only say so if they know what that means, and they should not confuse the two concepts. They are far from the same thing.
Most clients will say that their separation involves sadness, loss, grief, anger, hurt, fear, but most of them can’t name a single legal problem until they meet a lawyer who, with their special back to front telescope, can see legal problems in just about any situation.
As a lawyer who occasionally receives these letters, I would prefer that the other lawyer chose their path, rather than hedging their own bets and insulting my client’s intelligence about the real intent conveyed by the correspondence. By all means let’s settle out of court, but let’s not pretend at amicable.