Collaboration not Litigation
The Collaborative Approach to Family Law
A familiar experience for readers who have encountered a divorce or a separation is that of bitterness and acrimony. Possibly months of unpleasantness will have been suffered and worst of all, you will have paid for the privilege.
At Viberts, the aim of our Family Department is to resolve matrimonial disputes as painlessly as possible. This is not however always possible given that the options for resolving matters are generally either by negotiation or by referring matters to the Court.
Mediation is available to a limited extent, however, a new approach to dealing with matrimonial disputes is on the horizon and takes mediation a step further.
The stress and upset caused by acrimonious matrimonial disputes may be avoided under a new dispute resolution procedure known as ’collaborative family law’, or ’creative conflict resolution’.
This process allows lawyers and clients the opportunity of working together in a problem solving way. It essentially offers mediation with the benefit of legal advice. The clients and the lawyers effectively have a four way meeting (including accountants and any other professionals required) and the aim is to achieve a settlement of all of the issues between the parties against a background of full disclosure.
Potential clients may be fearful that the problems which occur in the usual matrimonial litigation process will also occur during the collaborative process, for example, the hiding of assets. Parties to a marriage/relationship however know their spouses/partners better than anyone else, and will likely already know if they have a propensity to be dishonest. If however this does occur, then the lawyer acting for the culpable party must withdraw from the process and the negotiations will break down and both parties must instruct new lawyers.
The aim of this new process is to give clients an alternative to the endless exchange of contentious correspondence and replace it with constructive face to face discussions.
The concern of some clients would be that this type of meeting may be potentially very upsetting for them and confrontational. However, each party will have the personal support and advice of their lawyer and can rest in the knowledge that this process will cost no where near the price of an averagely litigious divorce, and will save the dread of the next lawyer’s letter dropping on the door mat.
The aims of the lawyers are to maximise the pot of matrimonial assets and to achieve through reasoned negotiation what their client really wants bearing in mind the needs of the family. Part of this process will involve assisting with the practical separation of the family in a constructive and orderly way.
It is all too often the case that parties to a divorce or a separation become entrenched in their positions, and these positions are frequently based upon negative emotional responses, which in many cases are entirely understandable, but which should not form the basis of long term decision making. Principles cost money!
Should the process not be successful, then neither lawyer can continue to act in the matter and they are both out of job. This in itself provides an incentive for the parties to achieve a settlement of the matter.
Above all, it avoids the need for costly and seemingly endless litigation, the constant threat of Court proceedings and the feeling of needing to put one’s life on hold.
Collaborative lawyers are not employed as hot shots to find mistakes and focus on the negative. They are employed to proactively seek a settlement based upon the foundation of good faith and problem solving. Both parties must however be open to the concept of compromise and the finding of middle ground.
One of the founders of the movement, Pauline Tesler, said of the process ’I say to them: if you would rather give up the right to dance at your daughter’s wedding for another $20,000 on the settlement, then there are lawyers down the street who would love to help you and you’ll send their child to university – not yours’.
This is a service which the Viberts Family Department will offer in the near future.
Zoe Blomfield
Jersey Solicitor
25th January 2006