Jane Keir explains the advantages of working collaboratively to resolve family issues after separation and divorce.
When your world has been turned upside down by separation from your spouse or partner, it’s hard to think clearly and the pressure to make decisions can be intense. As the media consistently bombards us all with reports of ‘divorce court battles’, those of us who try to get the word out that there are different ways for families to sort things out have a tough job to get our voices heard.
A collaborative approach to resolving issues on divorce is very different from the traditional court process. The court process requires clear and linear thinking at a time when this is often most difficult. Solicitors and barristers are there to help with decision-making, but it is a fact that when the court process for resolving financial disputes on divorce has been started, a firm timetable is imposed – documents must be prepared, evidence gathered and decisions must be made. Clients have told me that however supported they are, sometimes it feels that when the court gets involved things are out of their control: the court process is setting the pace, rather than the people asking for its help.
If there are no pressing legal issues that require an immediate application to court, I will tend to recommend that people approaching divorce consider collaborative law as an option, and that both people involved choose a collaboratively-trained family lawyer to keep that option open for as long as possible. Even if one or both people feel that there is an urgent need to start resolving issues right away, it’s important to understand that this is more likely to happen in an environment where you remain in control – such as a meeting between the two of you and your chosen, experienced collaborative family lawyers – than by filling in the standard forms and waiting a few months for the court to see you. Your collaborative lawyer will be able ensure that what matters to you most is what gets dealt with first. In many cases, this is the children, who can be talked about alongside financial issues in the collaborative process, rather than having to keep them separate, as the court system requires.
I enjoy my collaborative cases because it always feels to me that I am giving my clients the very best service possible in the context of helping resolve their private, family issues on divorce. Although I am very used to working in court, and in some cases it cannot and should not be avoided, I find collaborative law to bring about better family outcomes and provide a gentler, more positive process in the most difficult of times. Unlike at court, you stay in control, with all the support you need. So if you know of someone who’s dreading their ‘divorce court battle’, perhaps you’ll add your voice to mine and let them know that they still have options – collaborative law is worth a look.
Suzanne Kingston explains how mediation’s flexibility as a process makes it ideal for resolving complex and entrenched disputes.
For the last few years, policy-makers and family law practitioners alike have been raising the profile of mediation as a dispute-resolution process in order to try to relieve some of the strain of litigation both on individual families and on the courts. The discussion tends to focus on the traditional set-up of family mediation. This is where two former partners meet in a room together with a mediator for 3-5 sessions of about 90 minutes each, and work out a way forward which is tolerable to both, and works for the wider family if relevant. However, this is not the only way to practise family mediation.
Where a family’s circumstances are more complicated, perhaps because of the scale of the assets involved, the involvement of foreign interests or difficult tax arrangements, the family involved may find that a ‘quasi-civil’ model of family mediation suits them better. This tends to involve the estranged spouses and their lawyers attending mediation for a few days if necessary with a specially-trained family mediator who directs the process and assists the two people at the centre of the dispute to come to an agreement. Some meetings may take place between the mediator and each team without the other being present; some meetings are between the spouses and the mediator only; and some are with everyone together, perhaps to hear from a jointly instructed expert about tax for example, or to negotiate specific points. The process can adapt to the needs of the family involved.
I myself have had several successes as a mediator with this model even where cases involved have been at final hearing stage. One example is where I assisted in a large complex mediation where the parties had jurisdiction issues in the background but were willing to put those to one side in order to mediate, knowing that they could resurrect them if needed in the future. We worked together over four days to discuss all issues – money and children – and reached a successful conclusion which enabled the couple involved to move on in a positive way.
In mediation, of course, all discussions are ‘without prejudice’ meaning they cannot be referred to in court if the process does not lead to a resolution – this takes away the risks involved in trying, and enables everyone to put their cards fully on the table in the knowledge that it cannot be used against them later.
One of the many benefits of dealing with a family dispute in this way is that the couple involved are able to resolve their disagreements at a substantially lower cost both in financial and in personal terms than if they had proceeded with a final court hearing. The semi-civil model of family mediation is not universally practised by family mediators, and is not appropriate in all cases. However, where it seems that all else has failed even in the most complicated of circumstances, it may be worth your while to seek out a civil/family mediator for one final roll of the dice.