Legal counselling in family mediation to address unnecessary litigation

Abstract

This research seeks to explore and evaluate the concept of legal counseling and its impact on dispute resolution processes and outcomes. For purposes of this study, legal counseling refers to specific attitudes, skills and strategies employed by the legal counselor in his or her interaction with clients and opponents in the process of resolving legal problems. This study is premised on the assumption that there is indeed a correlation between these attitudes, skills, strategies and the efficiency of the dispute resolution process. Some legal counselors promote swift and constructive alternative dispute resolution processes while others have the propensity to promote unnecessary and long drawn litigation. In this regard, the alternative dispute resolution mechanism of mediation will be reviewed with particular focus on family law case management in two jurisdictions, being South Africa and Australia.

This research will explore the basic elements of effective legal counseling such as the legal counselor`s ability to communicate effectively and manage human emotions, concerns and anxieties to advance effective, efficient and constructive dispute resolution. For purposes of this study, a legal counselor is a lawyer professionally trained to render legal advice and handle legal affairs of clients, and where necessary to appear on behalf of the client in courts and other dispute resolution platforms. The lawyer advises the client by employing the different lawyering models available. Two main legal counseling or lawyering models will be explored in this study, namely, the client autonomy model and the lawyer autonomy model. The lawyering model applied by the legal counselor can facilitate successful alternative dispute resolution or promote unnecessary and long drawn litigation.