Ruaraidh Adams-Cairns explains the differences between how he works in the collaborative process, as a mediator and as a court-appointed expert.
I am regularly called on in the conventional court process for sorting out the division of property on divorce to prepare valuation evidence as a ‘single joint expert’. This means that I am appointed and instructed jointly by both sides (via their solicitors) to write a report on the couple’s property, or properties, and value it/them so that the court and everyone involved knows what’s there to be divided up. Often, one or other side in the dispute will disagree with what I say, leading to correspondence and questions, and eventually perhaps to my being cross-examined in court about my methods and conclusions. All this is part of the job that I have been doing for many years now, and which I enjoy.
The collaborative process is different as I can come into the meetings that the divorcing couple are having with their collaborative solicitors and hear their views about the relevant property before I value it. I can therefore ensure at the outset that I address any particular considerations and concerns that either person has. They also have the opportunity to ask me their questions in person, as do their lawyers, and discuss my conclusions and their ramifications. Because the property owners are much more engaged and in control in the collaborative process, the chance of misunderstanding or a failure on my part to get to grips with psychologically important points is much lower. It can also really reduce costs where property makes up a big part of an asset base.
The collaborative process is particularly interesting to me in the light of my property mediation practice. There are huge similarities between the way collaborative solicitors work to arrange outcomes for their clients that are fair and tolerable, and the way that I work in mediation where I aim to use my surveying and sales background to facilitate deal-making.
In my experience, the collaborative process is preferable for couples where property is an important component because negotiation and deal-making is a sensible approach in the property sector. A process that keeps the important people highly involved, reduces scope for protracted misunderstanding and encourages open dialogue, even where emotions are running high, is likely to result in more positive long-term outcomes for the whole family. Although I enjoy my court work as an outsider, I see the havoc that going through the system can wreak on the people involved and would certainly encourage people to consider collaborative law as an alternative wherever possible.