| | | | | | | Collaborative law a new and better way | | Reproduced from The Post .ie | | Sunday, March 25, 2007 - By Muriel Walls | | | It is becoming increasingly clear that the courthouse is not the place to resolve family disputes and restructure family relationships.
The adversarial system is not best suited to the complex dynamics of family law work. While a high percentage of cases settle, this is often only on the steps of the court after most of the pre-trial paperwork of claim, defence and counterclaim - and angry correspondence - has already taken its toll on the parties. Collaborative law is an alternative method of resolving family disputes.
The aim is to find a fair and equitable agreement for the couple, based on reasoned judgment and realistic aspirations. The success and effectiveness of the system depends on the honesty, cooperation and integrity of the participants. It is geared towards the ongoing wellbeing of the family as a whole.
The essence of the process is that the best interest of the spouses and their families is served by trying to resolve these disputes in a non-confrontational way.
This is achieved by way of informal discussions with each party, ensuring their direct influence on the outcome. The ultimate aim is to avoid the use of court in family law cases. | | | | | | How does it work in practice? | | | The husband and wife each retain their own trained collaborative lawyer to advise and assist in negotiating an agreement.
A formal participation agreement is signed by both clients and their lawyers, which sets out the ground rules. It is essential that the collaborative lawyers agree not to act for their client if agreement is not reached and the parties proceed to court.
All negotiations take place in four-way settlement meetings that both the parties and their lawyers attend. The lawyers’ role is to guide and advise the parties towards a reasonable resolution. While legal advice is an integral part of the process, all the decisions are made by the husband and wife.
If either party decides to proceed to court, then the collaborative process ends and the clients instruct new lawyers who can take the matter to court. | | | | | | Why is it successful? | | | The process of the four-way meeting - where everyone is present in the same room at the same time with the same agenda and the honest commitment to look at solutions - creates a powerful dynamic.
The husband and wife hear exactly what the other has to say. The lawyers bring their problem solving skills to the table and the spouses can both hear their advice.
The negotiation style is interest-based bargaining, not positional bargaining. In positional bargaining, each side comes with a particular wish list of settlement terms and, after haggling, like in the market plac e, a compromise is reached. In interest-based bargaining, the legitimate needs of both sides are acknowledged and everyone works to try to achieve those needs.
| | | | | Does it suit every case?
| | | Collaborative law may not suit every case. Marital breakdown is second only to death of an intimate partner in its traumatic impact.
Family law clients are frequently coping with waves of strong - and, at times, unmanageable - emotions, such as grief, rage, fear and vengefulness or, at a very minimum, sadness, distress and concern.
Collaborative law is based on reasoned judgment and realistic aspirations, and looks toward the future, not the past. Couples who engage in the collaborative process must try to put past events behind them or, at least, not allow the anger and hurt of past events inappropriately to influence the decisions they are making for their future. Collaborative law depends on the honesty, cooperation and integrity of all the participants - the husband, the wife and the lawyers.
There must be honest disclosure of all of material facts - particularly financial issues - and agreement to work cooperatively with any jointly-appointed financial expert.
| | | | | Is every lawyer suitable?
| | | As lawyers, we are trained in the adversarial system, although most experienced family lawyers aspire to conduct cases in a constructive and non-confrontational way.
We encourage clients to put the best interests of their children first, and emphasise the importance of being honest and open and the benefits that can flow from a negotiated settlement.
But lawyers need to be trained in the collaborative process. This involves learning not only the collaborative model, but also the new skills needed to work with clients and the lawyer representing the other spouse to try and get the best result for both spouses and the family.
In many ways, working as a collaborative lawyer means we need to forget many of the skills we have developed over the years, such as the zealous representation of the client’s interests and the gladiatorial role we undertake, particularly for a client who is weak and vulnerable.
Approximately 200 lawyers (including many with the Legal Aid Board) have been trained in Ireland in the collaborative model by leading trainer Pauline Tesler. She is the author of ‘‘Collaborative Law - achieving effective resolution in divorce without litigation’’ and coauthor of ‘‘Collaborative Divorce - the revolutionary new way to restructure your family, resolve legal issues and move on with your life’’.
Tesler has been in Ireland three times to train lawyers in the collaborative process, and has done further training and workshops with lawyers who are already doing collaborative cases.
| | | | | Are courts necessary?
| | | Unfortunately, courts and judges will still have to deal with some cases, including the ones that lawyers have failed to negotiate, ones that mediators have failed to settle and ones involving families whom counsellors and therapists have failed to help.
The courts must be available for those cases, to make decisions where the couple themselves cannot do so or where there are points of novelty or complexity that need to be determined in a court of law.
| | | | | What is the cost?
| | | It would be wrong to promote collaborative law as a cheap alternative to litigation. However, a case that is processed collaboratively certainly has the capacity to work out financially less expensive than a full-blown court case, with barristers on both sides.
The couple should consider not just the legal costs, but the emotional cost to the family by the fractured relationships on both sides. Couples should also factor in the cost of the lawyers’ time in litigation, which drags out over a period of years.
Lack of focus on work, business or family wellbeing can also be a side effect of acrimonious litigation.
Collaborative law can be labour-intensive from the lawyers’ point of view, but a result is usually achieved after four to six meetings and agreement is reached over a period that suits the parties.
The collaborative process also encourages the appointment of joint experts, such as accountants and valuers. Once agreement is reached, most judges are happy to facilitate an early ruling of the case, should this be necessary, including an application for divorce, which can only be made by a court.
| | | | | Where can I get more information?
| | | The Irish Association of Collaborative Professionals (www.acp.ie) promotes the use of collaborative law. | | | It provides information for people interested in instructing a collaborative lawyer and also helps lawyer. For further information, contact info@acp.ie.
Muriel Walls is a partner in McCann FitzGerald and leads the family law group, which has been involved in many leading cases. She is the coauthor of "The Law on Divorce in Ireland" and is an accredited mediator (CEDR). | | | | |  For further information, please contact Marion Campbell Solicitors by calling (01) 475 9345, or by filling out an on-line enquiry form. |
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