Alternative divorce options for separating couples, which avoid undertaking prolonged, expensive and, often, emotionally draining, court processes are actively encouraged by Resolution, the family lawyers association.
The national organisation, which is committed to the constructive resolution of family disputes, consists of lawyers who encourage solutions which meet the needs of the whole family and, in particular, the best interests of children.
The aim of a recent campaigning week by Resolution was to explain alternative, non-confrontational options, such as mediation and collaboration, to those embarking on the painful process of separation.
Collaborative Family Process was founded in the USA in 1990. Thirteen years later, it was launched in England and Wales. There are now many lawyers in every area of England and Wales who have been trained in the collaborative process by Resolution.
What is collaborative family process?
Collaborative family process is designed to be less combative. At its heart is a participation agreementwhere both partners, with the support of their own lawyers, agree to follow the steps of the process. Everyone, including the lawyers, commits to reaching agreement without recourse to the courts.
Once the process is agreed and understood, a series of meetings take place which are designed to help separating couples to work things out together, face to face, with the support of their own lawyer, unlike the usual process where partners’ views are filtered through their lawyers to their ex partner’s lawyers by letter or phone.
In the collaborative process, all four people – the separating couple and their respective lawyers – discuss the issues that affect the family and look to the future. If children are involved, this will usually entail discussing how each child is adjusting to the separation, and how best that child’s problems or worries could be addressed. At early meetings, the couple will discuss the overall issues on finances and decide what information needs to brought to each meeting.
What about finalising the finances?
Future meetings often look at arrangements for finances and the many options available. Couples share costs of instructing specialists for advice – if external advice is needed – which include financial advisers, accountants and pension actuaries.
Overall, the family’s priorities and concerns are paramount and the process encourages an agreement that doesn’t involve a court timetable or any court involvement.
The key advantage of the collaborative family process is the commitment of the lawyers to the participation agreement themselves to ensure its success.
They are able to prevent breakdowns in the negotiations or minimise their effects. The lawyers also work together to create a better understanding between the couple which can of course assist in the long term.
Is it suitable for all types of separation?
Collaborativefamily process is not suitable for couples who have been involved in very abusive or violent relationships, but it is still capable of a successful outcome even if the couple cannot even bear to look at each other at the outset. A commitment to reaching a fair solution (rather than simply “winning”) is the key.
Can it be used to arrange a pre-nuptial agreement?
The collaborative law model is now being used for some pre-nuptial agreements where the bride and groom sit down together before marrying to draw up a plan if they separate in the future.
What about mediation?
Mediation, another option which avoids the courts, also suits many separating couples but does not always fit the situations which involve more complicated financial issues.
Under new rules, it will be necessary for separating couples to look at mediation or non court processes before they are able to start a court process concerning children.
The changes mean that couples will have an initial information and assessment session, which is documented, to see if their cases can be resolved by mediation.
This option involves a neutral third party, the mediator, facilitating discussions between both parties to help them reach agreement on issues including finances and contact with children.
In mediation it is the couple, not a judge, who make the decision about these important matters and lawyers are not present at the sessions. Like the collaborative process, it is not suitable in cases involving domestic violence and abuse and the mediator does not give legal advice, but gives information as to possible options.
The government has set aside ÂŁ25 million from public funds to encourage more couples to use mediation.
Ultimately though, non-court options will save couples’ time, emotional energy and, often money.
Author
Vanessa Fox is head of family law at hlw Keeble Hawson, and Chair of South Yorkshire Resolution
www.hlwkeeblehawson.co.uk for more information
DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances. This article is merely a general comment on the relevant topic.