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 practice?
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.

What happens?
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 conflict.

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 or www.collaborativepractice.com.

Lorna Samuels

 

back to News and Publications