All divorces involve decisions and choices such as which financial/legal and/or medical professionals to use and how to utilise their help. These decisions can powerfully affect whether a divorce moves forward smoothly or not. Some couples resolve all their divorce issues without any professional assistance whatsoever. More frequently, some couples engage in drawn out courtroom battles, which drains the family’s emotional and financial resources, are destructive to relationships and can take considerable time to complete. Most people find that their needs fall between these two extremes.
These decisions can powerfully affect whether a divorce moves forward smoothly or not.
Everyone is familiar with the usual process of obtaining a divorce through the Court system, using traditional litigation techniques such as tactical bargaining. However, a new concept recently introduced in Ireland, which is well established in America and recently established in Britain, is collaborative law; where the couple, with the assistance of their respective collaborative Solicitors, effect a divorce without involving litigation through the Courts.
Under this new dispute resolution model, both parties to the divorce retain separate specifically trained Solicitors whose only task is to help the parties settle the disagreements that they have. All negotiations take place in a number of four-way settlement meetings that are attended by both clients and Solicitors. The number of meetings required differs with each couple, depending on the complexity of the issues involved. The agenda for each meeting is agreed between the clients and Solicitors beforehand. The purpose of the four-way settlement meeting is to reach a settlement, which is negotiated by both clients directly, with legal advice provided by the Solicitors, if needed. Each Solicitor must guide their client towards a reasonable resolution. The legal advice provided by the Solicitor is an integral part of the process while the clients are the negotiators.
With negotiations only taking place in the four-way meetings, both parties insulate their children from their disputes and, should custody be an issue, they avoid the professional custody evaluation process. If a financial, medical or other expert is required, then one expert is retained to advise both spouses, as opposed to the traditional litigation approach of retaining separate experts to advise each client. Thus, the meeting can become a five-way meeting.
Once the issues have been settled and both clients have reached agreement as to the terms of the Divorce then the Solicitors prepare and process all the papers required to obtain the Court Order granting a Decree of Divorce on consent.
The agenda for each meeting is agreed between the clients and Solicitors beforehand.
Each collaborative Solicitor’s retainer is always on the basis that should the negotiations break down and it is not possible for the two clients to agree on settlement, then the two retainers are terminated and each client must instruct new Solicitors to proceed through litigation to achieve a divorce. Collaborative law is effective negotiation without the constant overhang of the adversity of litigation. The only time that a collaborative Solicitor involves him/herself with the Court system is when he/she processes the papers necessary to obtain a Decree of Divorce on consent. While this may appear unusual, having regard to the common perception that divorce has to be adversarial, this precondition is one of the foundations of collaborative law.
Collaborative law is not the same as mediation. With mediation, there is one neutral professional who helps the parties try to settle their disputes. Mediation can be challenging where the parties are not on a level playing field with one another, because the mediator could not give either party legal advice nor should he help either side advocate his/her position. For example, if one side becomes unreasonable or is emotionally distraught and the other side wants to agree just to appease him/her, then the mediation can become unbalanced. With collaborative law, each side has legal advice and advocacy at all times during the process. Even if one side lacks negotiating skill or financial understanding or is emotionally upset, the playing field is levelled by the direct participation of specifically trained Solicitors. It is the responsibility of each Solicitor to work with his/her own client if the client is being unreasonable, to make sure that the process stays positive and productive.
Collaborative law is different from the traditional adversarial divorce process in that all parties participate directly in an open, honest exchange of information. The traditional litigation approach is to obtain discovery of every scrap of information relating to each party’s means. While discovery and the open exchange of information is an important foundation of collaborative negotiations, discovery is generally narrowed down to specific aspects of each party’s finances that the other party is unclear about. Neither party takes advantage of the miscalculations or mistakes of the other; in fact he/she will be required to identify the error and correct it during the settlement meetings.
Obviously, collaborative law is not suited to all spouses who are contemplating obtaining a divorce. Generally, a degree of trust is necessary and the parties must have a reasonably amicable relationship.
Couples interested in exploring this means of dispute resolution should each instruct a suitably qualified Solicitor.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
