Tag Archives: collaborative

Consider collaborative

John Nicholson  Jun 11John Nicholson explains why he is such a proud advocate of collaborative practice on family or relationship breakdown.

I am proud to have been one of the early adopters of collaborative law when it came over from California to the UK more than ten years ago. As an experienced and committed family lawyer I could immediately see the advantages of a process that would keep families out of court, and save people from exacerbating the pain of divorce with stressful and expensive court proceedings. I am pleased to say I still feel as passionate about it today as I did then.

At first glance, collaborative practice in family law looks simply like a series of all-round-the-table meetings between former partners and their lawyers, but it is more than that. The key feature of collaborative law is the contract that everyone signs up to at the beginning of the process. This commits them to finding a solution without going to court (except to get approval for an agreement), so the lawyers involved cannot represent the estranged couple should they not manage to reach a settlement and decide to take the matter to court for a decision. On this basis, the lawyers are highly committed to making the process work, otherwise they lose their client, and the clients are highly committed also, as they tend to prefer not to have to go through the delay, stress and expense of instructing a second lawyer. It is in everyone’s strong interests to work towards a lasting solution to the problem out of court, whether it be property, money or children-related, or indeed all of them. There is no easy way out!

I very much enjoy working collaboratively as I believe it provides a much better foundation for life after divorce than battling in court, particularly where there are children. It is very difficult for parents who have spent three days fighting in front of a judge to get over that enough to co-parent children respectfully, effectively and constructively. By contrast, during the collaborative process I have witnessed parents who have diametrically-opposed points of view come to understand the other’s position and work together creatively and openly with their lawyers to devise practical solutions that everyone can tolerate. This must be a much better foundation for all the years of co-parenting to come.

Rapport is at the core of the collaborative process. This operates between client and lawyer, who work together more closely perhaps than in a traditional legal context, and also between the two lawyers who represent the former couple. Collaborative law does not work if there is no trust between the lawyers involved. In Creative Divorce, I am proud to say that I trust my fellow collaborative lawyers to follow the principles of collaborative practice with their client’s best interests in mind, and I hope they would say the same about me. This makes it the ideal platform for devising the best possible foundation for life after divorce.

John.nicholson@irwinmitchell.com

Full disclosure

William MasseyWilliam Massey explains the key part played by financial disclosure in divorce, collaborative or otherwise.

Financial disclosure is the biggest single legal exercise in the divorce process for most of my clients, whether they are resolving disputes in court, through mediation or in the collaborative process. In order to ensure that financial arrangements on divorce are fair, and for lawyers to advise, it is necessary to pull together a comprehensive picture of the assets, liabilities, income, expenditure and expectations of both spouses. Financial disclosure must be full, frank and clear. When it is not, the process inevitably becomes longer, more complex and more expensive.

As a case in point, the justices of the Supreme Court have just heard argument in the case of Sharland. The former wife is seeking to reopen a court order on divorce finance reached by agreement at a time where her former husband failed to tell the whole truth about his business affairs.

The former couple reached an agreement on the understanding that the husband’s business was worth between £31.5m and £47m, and that his shares in it were worth £7million. He had told his wife and the court that he had no immediate plans to float the company. However, shortly after agreement was reached and approved by the court, it emerged that the company was worth significantly more (press reports said up to £600m) and that an initial public offering was indeed being prepared.

Mrs Sharland asked the court to set aside the agreement on the basis that neither she nor the court had been aware of the true scale of the husband’s wealth at the material time. However, both the High Court and later the Court of Appeal declined to overturn the settlement, saying although the husband’s non-disclosure had been deliberate and dishonest, it was not “material” to the outcome: effectively, the wife would have received a similar amount even if the truth had been known. The Supreme Court has now been asked to take a good look at the rules, and what happened in this case, to say whether the lower courts were right to reject the wife’s application to reopen the settlement. We await the judgment with interest.

Financial disclosure is just as important in the collaborative process as it is the court process, and the same standards of disclosure apply. However the collaborative process has the significant advantage of the built-in opportunity to ask questions of each other face-to-face, and to discuss complicated matters such as tax and business valuations directly with the experts. This reduces the potential for delay, confusion and misunderstandings, which can all be frustrating and costly elements of the litigation process. The end result is that decisions about future financial arrangements can be made consensually once everyone is satisfied that the relevant issues have been explored and all questions answered. If this can take place, as tends to be facilitated in the collaborative process, there is a much lower likelihood of problems arising later.

William.massey@farrer.co.uk

Control via collaboration

JaneKeirHighResJane 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.

Jkeir@kingsleynapley.co.uk

Middle East family focus

Grant HowellGrant Howell considers how the advantages offered by collaborative practice can particularly benefit Middle Eastern-based families looking for a smooth divorce.

With the Middle Eastern region so much in the news for negative reasons, it’s easy to forget that many British families make their homes in the area to take advantage of the thriving economic climate provided by certain states and countries. For example, according to the BBC there are 55,000 British people living in the UAE alone, mostly in Dubai and Abu Dhabi. There are a further 26,000 in Saudi Arabia. In line with long-term trends around the world, the rate of divorce amongst ex-pats in the Middle East is increasing.

Unfortunately, significant complications can arise for ex-pats based in the Middle East going through divorce even if they wish to do things amicably. On top of the usual complexities involved in cross-border divorces, there may be particular considerations regarding the tax treatment of offshore assets and property held in these states, which require specialist legal attention on divorce. Unless matters are agreed between spouses, litigation in these sorts of circumstances can run up substantial fees.

Other complications can be present concerning arrangements for children based in the Middle East. The parents may find that local law has a bearing on their plans or wishes for the children, and there may be concerns about moving the children back to the UK. All these issues can directly impact upon the family looking to make arrangements for after the divorce.

For these ex-pat couples, there are significant advantages to working with collaborative lawyers to arrive at a mutually agreed solution. The ‘teamwork’ ethos of collaborative law ensures that both adults know the advice being given, and can approach the complicated choices they need to make with a full understanding of the implications of each course of action on themselves, the other spouse, children, and other family members. Questions and differences of approach can be aired and discussed in a constructive environment focused on the future, rather than thrashed out in court adversarially.

The aim of collaborative practice on divorce is for both adults to feel that they own the final result, that they have worked to find a fair future together, and that decisions have been made in a cost-effective and open way. Research shows that collaborative law is best suited to achieve those objectives. The more complex the circumstances, the higher the risks of litigation – both in financial and family terms. This is why for international couples based in the Middle East, collaborative and Creative Divorce is a process worth investigating.

grant.howell@crsblaw.com