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
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