SHEILA HAS JUST found out that her husband, Stephen, is having an affair and that he wants a separation, or divorce. She is hurt, angry and fearful. Her family and friends tell her she must get the ‘best lawyer in town’ to fight for her. Stephen feels guilty that his marriage has come to end but it has not been good for years. He is worried about the children and afraid that Sheila will stop him seeing them and will try to destroy him financially. His family and friends tell him to go to the ‘best lawyer in town’ to protect his position.
Lawyers are part and parcel of the process of separation and divorce but not every case has to be fought out in the courts. If Sheila and Stephen litigate out of fear and anger, the process can be very stressful and uncertain, take a very long time, a lot of money and leave them both dissatisfied with the outcome and possibly unable to talk to one another about their children.
Thankfully many couples are looking for a more civilised and humane way of resolving their dispute and many lawyers can offer that through collaborative practice. Collaborative practice is a process in which both parties, and their lawyers commit to resolving matters between them without involving the court to make decisions on their behalf. It is the ‘no court commitment’ which offers the prospect of delivering a solution for the long-term benefit of the couple and their family.
The key factor in collaborative practice is that both parties and their collaborative lawyers commit in a written participation agreement to resolving issues without going to court. This is a powerful dynamic when everyone focuses on solutions. All the discussions take place in four-way face-to-face meetings between the two parties and their two collaboratively trained lawyers so there are no nasty letters or court documents.
The lawyers help each party to say what they need and secure their interests. It is therefore different to family mediation where the lawyers are usually outside the process. The discussions focus on the ‘concerns’ of both sides and the ‘interests’ of each of them and any children.
In the adversarial process, arguments are marshalled to persuade the court to a certain point of view. It is often a case of winner takes all with little regard for the other side.
In collaborative practise the key decisions are made by the parties themselves. They are not made by a judge in a courtroom.
Emotions running high
Lawyers are often accused of dragging cases out longer than necessary and not really being interested in settling a case early. The way in which collaborative divorce removes that risk as the two collaborative lawyers sign an agreement with both parties which disqualifies them from representing either side in contested court proceedings if agreement is not reached through the collaborative process. That means they are absolutely committed to helping find the best solutions by agreement, rather than through conflict.
What else happens when a couple embarks on the process? Well, both parties must commit to providing financial and other information and disclosure in an open and honest way. The collaborative lawyers will provide legal advice and guidance throughout the process and they work in a non-confrontational way with both sides and each other to assist in reaching a resolution. Before a four-way meeting they will usually discuss any difficult issues their clients have so both lawyers are prepared for any ‘hot button’ issues that might arise.
The process is flexible and allows both collaborative lawyers consider whether to involve other professionals such as trained counsellors to help the parties emotionally and to improve communication. This is very useful if emotions are running high. Financial and pension experts can explain the finances/pensions and give tax advice. The experts are neutral and serve the interests of both sides and so are cost-effective. Child expert and/or family therapists can be brought in if there are particular children’s issues that need to be addressed.
In contrast to court cases, everyone is focused on fair solutions. In contrast to mediation, legal expertise and support is there throughout the process. This leads to speedier resolution and often reduced legal costs. The team-based approach means the decisions are made by both parties and are not imposed by a judge. This allows for more creative and fairer settlements. There is a limit to what judges can do in their orders which can be pretty blunt way to deal with complex situations. The collaborative process often improves communication with the spouse/partner allowing resolutions to be reached in a dignified and respectful way.
If there are children involved, it’s particularly worth considering collaborative divorce. Studies have shown that children are inevitably upset if their parents separate but the level of upset depends on how the parents go through the process. Hotly contested adversarial court cases will cause further upset to children than those cases where parents can work together for the sake of the
children. Children are reassured when they see their parents can talk to each about their needs.
The collaborative process is not suitable to every case. It requires a degree of trust between the parties, a willingness to sit down to discuss a fair outcome for both sides. It is a real challenge for each couple but the reward is having gone through the separation or divorce process in the best possible way and the ability to talk and discuss openly is a life-long benefit.
Surely that is better than slugging it out in court, Kramer vs Kramer style.
Muriel Walls is a family law solicitor and collaborative practitioner. For more information on collaborative practice visit acp.ie.