Category: The Brief

By Wan Cheng Chan

All families are different.  Unfortunately, not all families are equal.

When Elo and I met more than 9 years ago, we fell in love. Just like any other couple, we had dreams of starting a family one day and growing old together.

As two women from two different countries, we knew that our chosen life journey was not going to be easy.  After fighting for our families to accept us, jumping through administrative hurdles to secure our marital and legal status, we were finally ready to have a child together.

However, if there was one thing that we had not expected on this journey to becoming a parent, it was the strong support we had received from our family, friends and even strangers.  From conception, delivery and finally raising a child, we were surprised by the unexplainable bond that we had with others that wanted to help us succeed and become parents.

In fact, the biggest takeaway from all of this was realising that we were not alone.  When we first wanted to know how we could even start a family, there was already plenty of help at hand thanks to readily-available resources and advice given by other same-sex families, both in Singapore and France.  Looking back, the making of baby L was actually straightforward because we had guidance and just needed to follow medical protocols.

Hence, we knew our biggest challenge was going to be the fight for the legitimate recognition of our family after the birth of baby L. Turning once again to our community of same-sex families, we were able to get in touch with a French lawyer, Maitre R, who helped us launch the legal procedure to obtain the second parent adoption in France once baby L was born.

Second parent adoption is typically done when one LGBTQ partner is biologically or already legally related to the child and the “second” parent needs to establish the parent-child relationship legally.  This process grants the “second” parent the same rights as the “first” parent without the legal parent losing any rights.

However, we knew we were headed towards unchartered territory because there were very few cases of bi-national, female, same sex couples requesting for second parent adoption in France. Our lawyer was particularly concerned due to the lack of adoption rights between our two countries for same-sex couples.

Given that we had already chosen to establish our lives in France, we had to make the tough decision to not claim Singapore citizenship rights for baby L in order to urge the French courts to apply French laws and allow Elo to adopt our son.  However, we needed this decision to be substantiated by legal documentation.

As such, we contacted Susan Tay Ting Lan from OTP Law Corporation (who had previously helped us apply for our LPA and drafted our wills) to assist us in drawing up an affidavit to clarify the interpretation of Singapore law in our case.

Fortunately for us, Susan was able to tap into PracticeForte Advisory’s EU legal contacts and link us up with a French affiliate, Sabrine Cazorla Reverre, who was familiar with French family laws.  A Skype call was quickly arranged with all parties and, shortly after, Susan had her team put together an extremely comprehensive affidavit explaining our difficulties of obtaining Singapore citizenship for baby L and the legal impossibility of the Singapore courts of ever permitting to Elo’s adoption of our child.

This document not only provided legal proof to substantiate our case, it also helped our lawyer and us better understand the application of laws on same-sex families in Singapore.  In many ways, the document was a culmination of the EU-ASEAN connect showcased by PracticeForte Advisory.

A month later, we finally received a positive verdict regarding our adoption application.  After 2.5 years of trying to have a baby and almost 2 years of legal limbo, we were finally, officially, a family.

While our journey to becoming a family was not easy, I feel hopeful for the future of other same-sex families. For each step taken, we were able to push social and legal boundaries as well as challenge opinions even if these were just miniscule changes.  Most of all, we were only able to do all these thanks to our “village of allies”.

As a parent, I can only hope that baby L and his children will grow up in a world where families are no less equal, just because they are created differently.

“A special note of thanks again to Emelia Kwa, Sabrine Reverre from Rajan Chettiar LLC, Susan Tay and her entire team from OTP Law Corporation as well as PracticeForte Advisory for helping us in our fight for adoption”.

By Susan Tay, Co-Founder of PracticeForte & Founder of OTP Law Corporation.

This is the 5th part of a series on therapeutic justice and how it may be applied in family cases in Singapore. You may read Part 1 here, Part 2 here, Part 3  and Part 4 here.

In these parts, we dealt 1stly with how the essence of Therapeutic Justice for family cases is in the healing. The next parts involve the perspectives and roles of the different players  and they are namely, The Lawyer, The Accountant, The Mediator and in this article, The Mediation Advocate.

Family cases will be restricted to divorces and the issues arising out of a divorce. These issues include division of assets, financial support and importantly, children’s matters like custody, care and control, access.

What is a Mediation Advocate?

Not a well-known profession in this part of the world, a mediation advocate, very simply defined, is a party’s professional representative in a mediation. The mediation advocate is definitely the presenter of the client’s case. She is the negotiator of that settlement the client is often desperate to reach. He is the protector of the client’s interests and makes sure any settlement reached secures that interests. Sometimes, she can also be the conflict resolver. In practice, a mediation advocate is quite often the client’s lawyer as well.

In short, a Mediation Advocate is  Negotiator + Protector = Conflict Resolver. The Mediation Advocate advances the client’s case, protect the client’s interests, persuade acceptance and is non-adversarial.

A mediation advocate is definitely not a litigation lawyer.

Role of a Mediation Advocate vs The Lawyer

I have been a lawyer for 30 years and an active mediation advocate since 2013. That was when mediation becomes mandatory for all divorce cases involving child/children under 14 years old. That age limit has since be raised to just under 21 years old. 

I am therefore in a good place to say this: the role of a mediation advocate is quite different from that of a litigation lawyer. There are some who may even think that the mediation advocate and the litigation lawyer as inherently having contradictory interests.

For instance, the lawyer may want to have the case proceed to trial and the outcome determined by a judge. Often this is because the lawyer feels that the law is on the client’s side.  A mediation advocate, on the other hand, will earnestly help the client to settle the matter without further litigation. This may mean putting peace of mind over legal rights. Something repugnant to the lawyers who put rights over all else. A lawyer may think: this settlement is letting the other party off too easy because my client should be entitled by law to more

Mediation Advocate as the Guardian of Client and Client’s Interests During the Peace Process

 I often regard myself as a guardian or even a bodyguard for my client at the mediation session. Most of my clients hate the idea of sitting across from the person they are having a dispute with. So many times, the tension in the room is so palpable you can dance to it.  Both parties will be sitting facing away from the other, arms folded across chest, lips pursed.  At once angry and scared and feeling threatened, the reaction is likely to escalate by threatening back.

A good mediation advocate has to be the calm one. Not add to the fray of tensions, threats and escalations.

How To Better Serve the Client As A Mediation Advocate?

A mediation advocate advances the client’s case through persuasions, not arguments. You made the points amiably but firmly, with no need for aggression (even the passive types) or raised voices. Nice generates nice and so, quite often, the atmosphere immediately becomes more conducive for discussions. When things get heated and they do, then it will be a good time to indicate to the mediator perhaps a break or private sessions will be good. A good mediator will often beat you to that. Your mediation advocate selects that mediator for you.  

At the private sessions, the mediation advocate can then bring some very sensitive issues to the mediator. She will explain why these issues, which may be regarded as inflammatory or outrageous by the other party are important to the client. This is especially common in family disputes.

Family Law Does Not Always Solve Family Issues

In my focus of work which is family law, I firmly believe that the law often cannot and does not resolve many issues for families. These issues are multi-faceted. They involve complex mix of emotions (especially love, ironically), expectations, distrust, egos. They involve innocent parties beyond the married couples like children, parents, in-laws, helpers.

Many of these issues will not go away with a court ordered dos and don’ts. In divorce proceedings,  parties do go back to court again and again if they have no other means to resolve their disputes.

 Further, issues involving family members like children change. They grow up, they need more. Income capacity alters, ability to provide diminishes. And the old orders will not be fair anymore. Variations are thus necessary and parties must expect that orders will not remain forever. This idea can be unsettling.

Therapeutic Justice and the Role of A Mediation Advocate

I believe that people should learn how to adapt to the changing scenarios without resorting to litigation. 

A mediation advocate can help advance that by 1^st doing a good job at reaching not just a settlement, but an enduring settlement. If that settlement is enduring, parties are also likelier to work better together. It is then much easier to promote mediation as a default pathway to dispute resolution, an effective peace approach everyone can come back to again and again.  

This article was first published in Law Gazette, an official publication of The Law Society of Singapore.

By Rajan Chettiar, PracticeForte Advisory Affiliate

“You are too nice,” he said. “How do you want me to be at a mediation?” I replied. “I am worried,” he said. I had given an assessment of the outcome at the mediation to him. “If you are worried, I cannot do anything for you,” I replied. This is an exchange I had with a client recently who wanted adversarial conduct during a mediation.

If being non-adversarial is a cause for complaint in family proceedings, then we cannot fault lawyers who are litigious during mediation or in Family Court proceedings. The complaints of lawyers’ conduct in court proceedings, the role they play in increasing the acrimony between parties by encouraging their clients to be litigious by filing a multitude of interlocutory applications is not a fair one then. The duty is then not only on lawyers to be amicable; the burden falls equally on the clients.

The recent recommendations of the REFF Committee on promoting non-adversarial family proceedings need to be extended to creating public awareness of amicable divorces. Non- adversarial proceedings in the Family Justice Courts will only become a norm if clients choose amicable divorces over contentious divorces.

The most welcoming recommendation by the committee is the extension of the judge-led approach. Though not a new recommendation, the hope is that our Family Court judges will exercise this approach with more rigour and no fear against litigants in person. Currently litigants in person are perceived by the Bar to be treated lightly by the Court which gives them courage to be unreasonable and rude to counsel. Recently I was involved in a long hearing with a litigant in person; she was extremely rude and continued to berate me in court. A senior Judge just told her to tone down her manner which did not have any effect on the lay person who continued with her behaviour during the hearing which spanned over three days.

I am heartened to note my advocacy for pre-mediation and counselling before a spouse files for divorce has now become a reality. The effectiveness of these much awaited measures lies in its implementation.

The future of family law practice is undergoing changes. There is a big move to help litigants who are unable to afford legal fees to obtain divorces. Schemes will be rolled out to help these needy litigants. This may affect family lawyers’ livelihood. Yet, this class of litigants may not be able to afford lawyers in the first place. Though I appreciate the concerns, are we as lawyers overreacting? As clients often tell us, we need to think out of the box and adopt new strategies in providing our legal services.

I have been a full- time family lawyer for 17 years out of a 23-year law career. I concentrated on family practice as I wanted to use law to help people. The practice has become competitive with many more firms now focussing in this area of law. It has become demanding in terms of ever changing court processes and different types of demands from clients. Clients expect their lawyers to understand them better, often to even know their unspoken thoughts and concerns, be vocal, be aggressive and outbeat their opponent counsel. They often talk about strategies and being fully aware of processes up to the minute. Many want to be actively involved in the administration of their matter.

Lawyers choose family law practice because of love for the law and a wish to help couples and children. I find many members of the Family Bar protecting their clients’ interests a little too seriously. They become personal towards the opposing counsel. They are at times unnecessarily aggressive towards opposing counsel. Sometimes I wonder whether it is their own divorce they are fighting for. How do these lawyers forget their previous persona and become friendly towards their opposing counsel in social situations? I find this behaviour strange and I am unable to change my personality in the way that others easily make the switch. Are we, family lawyers, chameleons?

There are other lawyers who consistently use the cloak of clients’ instructions to pursue aggressive family litigation. The practice of family law is a business but at the same time it is different from other areas of law where families and the future of children are affected. If clients, against sound legal advice, decide to litigate and can financially afford to do so, this is different from lawyers encouraging clients to litigate and file a sleuth of interim applications in addition to divorce proceedings.

Although mandatory mediation in family proceedings have been implemented for some time now, there are lawyers who will hint at litigation at the first opportune moment during the first round of mediation.

The first question many family lawyers ask at the first client meeting is, who are the opposing counsel and then proceed to advise the client on how the opposing counsel will conduct the matter and advise on legal fees accordingly.

Besides promoting amicable divorces, amiable advocacy should be encouraged in the Family Bar.

At the end of the day the question is whether we feel we have done an honest day’s work and can have a peaceful sleep.