Once a couple have decided that they want to separate and there is no going back there are three principal issues to consider. If the couple are married there is;
- The divorce itself
- The finances
- The children and their welfare
Often the grounds of divorce are not the most important thing. Most people who separate in Scotland enter into negotiations about the finances and the children and if agreement is reached enter into a Minute of Agreement or Separation Agreement which is the same thing.
The difficulty comes in reaching the agreement. If negotiation is not successful then the only other option is the courts.
There are many reasons why a court action should be avoided if at all possible. Such actions take a long time, they are notoriously expensive and critically they can sour the already difficult relationship between the parties.
This is of particular significance where there are children involved and therefore ongoing communication between the parties is necessary.
It is not surprising that exposure to the court process can worsen relations. The process is designed specifically to be adversarial. The objective is to win. It is extremely doubtful that such a process is suitable for Family Law cases. There may be the occasional important point of principle or difficult point of law where a Judge is needed but generally family cases should be capable of being resolved in other ways.
Which is where Collaborative Law comes in.
Family lawyers were looking for a process that provided a genuine alternative to raising court proceedings.
It was generally felt that often email between solicitors dragged on and in some cases, if agreement was not reached in correspondence, attitudes hardened reducing the chance of an agreed settlement.
What about a process where the parties met face to face and tried to negotiate an agreement. This might work for some couples but others may well find it too difficult to be constructive and emotions might get in the way.
Another possibility was Mediation where, instead of the couple meeting by themselves, a trained neutral mediator who takes the face to face sessions and tries to reach consensus.
Again this works in some cases (and is particularly helpful in cases involving children) but some people who have already consulted a Family lawyer want that lawyer with them for both legal and moral support.
Taking all these different factors into consideration, about 20 years ago a new process was formulated in North America.
Parties would attend a series of meetings with their Family Lawyers. At the first meeting the parties would sign a document confirming they agreed to rules of Collaborative Law.
Significantly this document would contain an undertaking that neither party could raise a court action using their current Family lawyer. There was therefore an incentive for everyone to try and reach an agreement.
A formal process was designed which envisaged meetings between solicitors to identify what mattered to the parties, four way meetings when everyone was present and, if necessary, meeting with specialists such as IFAs (Independent Financial Advisers) and Counsellors who would help the parties reach an equitable agreement.
What mattered to the parties most, otherwise known as their interests, would be the initial focus, with the aim of acknowledging these interests and trying to find a solution which satisfied each person’s interests as far as possible.
Importantly, and in stark contrast to the adversarial Judicial process, the parties and their lawyers would work together, they would collaborate in trying to reach an Agreement that would work for each party. There would be no winners or losers and relations would remain civil.
Family Lawyers cannot undertake Collaborative Law unless they have received extensive training. Brian Rooney, the senior partner in Rooney Family Law has been trained in Collaborative law and if the process is of interest just get in touch.
