Postcard From Afar
Nexus Expat News, May 2005
The Wind of Change
Settling Out of Court
At certain times of year Western
Europe finds itself on the tail end of a hurricane
or stormy weather which has blown across the Atlantic
from the USA. This is usually not very welcome!
However a breath of fresh calm air has swept over
the North American land mass and across the ocean
into family law in the UK and Ireland and has been
greeted with enthusiasm.
What is this breath of fresh air?
It is a new way of resolving family problems including
divorce, separation, parenting disputes and disputes
between unmarried couples. It is known as collaborative
practice. The separating couples work with specially
trained collaborative lawyers to reach agreements
that are voluntary and of maximum mutual benefit.
So what is new about it?
Everyone, the lawyers and their clients, signs an
agreement disqualifying their lawyers from representing
them at court if the collaborative negotiations
fail. If the collaborative process breaks down,
then the two clients each need to appoint new lawyers
to act in court proceedings.
Is it not just a form of mediation?
In mediation there is a neutral professional who
tries to help a disputing couple to settle their
case. The mediator can not (unlike a collaborative
lawyer) give either side advice or help them advocate
their position. The mediator may fail to maintain
a level playing field and the mediation then breaks
down. It is the job of a collaborative lawyer to
make sure that their client always feels supported
and gets all the help needed to deal with their
emotional upset or financial uncertainty.
What is attractive about collaborative
Firstly, it enables an individual to retain control
of the decision making and avoids the uncertainties
of the court system. The couple and their lawyers
are working together to find the right solution
for both partners.
Also it helps the couple to maintain a dignified
relationship and assists communication between the
couple with emotional benefits, of course, to their
children but also mutual friends and members of
each other’s family.
Couples can make sure that issues which are of great
concern and importance to them are fully addressed
without the time pressures exerted by court deadlines.
They are not on a fast moving conveyor belt to the
door of the court from which they can not alight.
Collaborative practice fosters respect which helps
to preserve self esteem and to seek to reduce the
emotional devastation often experienced on the breakdown
of a relationship.
Each individual receives advice and guidance from
their lawyer and then they meet with both lawyers
in a series of 4 way face to face meetings to resolve
the issues. Other professionals such as counsellors
and financial specialists also help the couple to
reach an agreement.
Why is it proving to be popular
with family lawyers?
The process involves four active participants and
makes the lawyers members of a problem-solving team
rather than combatants. It is a client led procedure
- for example the couple may be asked - How would
they like their children to view the divorce? It
is a constructive route and involves the lawyers
in extra training in guiding negotiations and managing
How international is this new approach?
It is already widely practiced amongst family lawyers
in the USA and Canada and has found its way to New
Zealand as well. More and more family lawyers in
the UK and Ireland are training in the area. There
is emerging interest in many countries including
Austria, Russia, Brazil and Australia. In California,
where the concept has dramatically taken off, there
is strong judicial support. It is also spreading
to commercial sectors and other legal areas such
as employment and probate disputes.
However it takes two to tango….
Of course the idea is not for everyone - for example,
if an individual feels it is beyond doubt that their
partner is dishonest and will not voluntarily disclose
financial information. Sometimes the suggestion
of trying collaborative practice is greeted with
suspicion. However the opportunity of a creative
solution should be explored, where available, because
the result of a collaborative deal is likely to
be more satisfying than a court judgment.
So time to issue a weather warning:
The wind of change may be blowing into a lawyers’
office near you!
Further information is available
at the following sites: www.collabfamlaw.co.uk www.collabgroup.com
back to News