News and Insights
28 September 2016
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 to add insult to injury, you will have paid for the privilege.
The aim of family lawyers 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.
The stress and upset caused by acrimonious matrimonial disputes may be avoided by using a new dispute resolution procedure known as ‘collaborative family law’.
Collaborative law is similar to mediation insofar as it is a type of Alternative Dispute Resolution. Alternative dispute resolution, usually referred to as ADR, is the collective term for the ways that parties can settle civil disputes, with the help of an independent third party and without the need for a formal court hearing.
The process however differs from mediation in that each party maintains their own lawyer, who will continue to support and advise them, but in a constructive and non-positional way. The lawyer remains an advocate rather than a neutral party. Both lawyers work together for a common goal determined by the clients.
Collaborative law was initially developed by a family lawyer, to be used in family matters, but is now so popular that it is being extended to other types of law. The ADR Group believes that the same principles that have preserved the integrity and dignity of families, who wanted mediation with advice, can also bring relief to those in dispute to many civil and commercial areas of the law.
This third type of service is intended to run alongside litigation and mediation to give clients a greater choice as to how they would like to deal with issues when they decide to separate.
What is certain of any type of ADR is that it is preferable to any form of resolution imposed by the Court.
The process seeks to achieve a settlement that both parties will accept and which could incorporate the ideas of the parties, which the Court may not have the power to order. The process also aims to control the emotions of the parties and the sometimes aggressive stances of lawyers. This is achieved by a series of 4 way meetings between the parties and their lawyers (and any other necessary professionals). During these meetings, the parties brainstorm in imaginative ways whilst maintaining a balanced perspective, and carefully construct strategies to resolve the issues, without ever threatening to go to Court.
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 may be that the type of meetings which are undertaken in collaborative law (i.e. face to face) may be potentially very upsetting for them and confrontational. Each party however will have the personal support and advice of their lawyer and can rest in the knowledge that this process will cost less that 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. Full financial disclosure however will still take place if the parties decide they wish to do this.
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.
In addition, before the process commences, the parties acknowledge that they cannot at any stage in the process threaten the other party with legal action. If this rule is broken, the parties must terminate the collaborative process, and this will automatically involve the standing down of both collaborative lawyers and new litigation lawyers must be instructed. This will obviously increase the parties’ costs. Interestingly, current studies show that 95% of cases are successful.
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. It also prevents runaway emotions, which can sometimes be the underlying reason why a settlement is not achieved.
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.
The process allows the practical arrangements of a separation to be driven by the clients, not the Courts, which minimises the pain caused to them and which ensures integrity and client satisfaction.
The benefits are obvious. A divorce/relationship breakdown may no longer adversely affect the next decade or more of the parties’ lives and their children will undoubtedly benefit from their parents’ ability to co-operate with one another and to co-parent.
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 Viberts' family law team can offer.