The Continuing Legal Education Society of British Columbia
Published August 2004
Collaborative law is the fastest growing method of alternative dispute resolution in the world and it is the youngest creature in the Irish alternative dispute resolution jungle. With possible application across all fields of dispute resolution from family law to civil and commercial disputes, collaborative law has real potential to have a wide impact on the future shape of the Irish dispute resolution arena.
Public Information Evenings
The Association of Collaborative Practitioners will be hosting a series of Public Information Evenings around the country during the month of May. As more and more lawyers are training in collaborative law in Ireland (with an estimated 600 lawyers who have already completed basic training) it has become clear that the national appetite for learning more about the practical application of collaborative law is large.
Bible for Collaborative Law Practitioners
The beauty of the international nature of collaborative law is that international literature, in particular that generated in North America, provides valuable sources of guidance and debate for collaborative practitioners of all levels.
A book that can be seen as a bible for collaborative law practitioners around the world is Nancy J Cameron’s “Collaborative Practice : Deepening the Dialogue”. Written by a Canada-based collaborative law practitioner, this beautifully written book is easily accessible, practical and refreshing.
This is not a training manual or promotional manifesto. Rather, the writer engages in a process of reflection and analysis of a process which has been developing since 1990. She lifts the veil on collaborative practice, questioning and challenging while allowing the reader the benefit of her wisdom and extensive experience as a collaborative family law practitioner. The result is a wonderful book, written with honesty and integrity, littered with anecdotes, poetry and quotes which make it a pleasure to read.
On each page, the reader will find their desire for change and their enthusiasm for this innovative process reflected while also finding their questions about the practice of collaborative law mirrored, explored and answered with empathy and sincerity.
Divorce and Separation - Then and Now
Cameron explores the historical context in which divorce and separation has evolved in an effort to understand our personal, professional and societal relationship with marital breakdown and its impact on the players. In doing so, she addresses the inadequacies of the traditional Court process as a method of resolving complex personal family disputes while identifying the real possibility of achieving a healthy outcome for clients, their children and practitioners alike through the collaborative process.
While highlighting the huge benefits of enabling clients to acquire control of negotiation and empowering clients to make lasting decisions, she is also mindful to explore the new responsibilities and values of the collaborative lawyer within the process.
Brave New World for Practitioners
Cameron fearlessly grasps the nettles with which all initiate collaborative lawyers wrestle. She explores the paradigm shift, the disqualification clause and the full and frank disclosure obligations at the heart of collaborative process, acknowledging the importance of confronting and questioning these characteristics in order to strengthen collaborative practice as it develops.
She addresses the lawyer’s role as advocate in a model which is built to accommodate self-determination on the part of the client. She examines the lawyer’s need to learn how to listen to clients, not only listening to their words, but listening for and understanding the interests that lie beneath. She looks at the new communicative skills that lawyers embrace in their new role within a team and how collaborative lawyers must construct a relationship based on trust and openness with their colleagues within the process – she does not shy away from an exploration of the challenges that this necessarily poses for lawyers who have traditionally worked in the adversarial system.
While lawyers continue to be advocates and advisors for their clients within the collaborative process, they perform their role in a new environment and within a team setting. It is vital that we engage in a conscious analysis of this new role as it develops in order to protect and enhance the service that we provide to clients. Cameron provides plenty of food for thought as we dive into the deep end.
Interdiscipinary Practice - The Team
Collaborative law can be practiced with input from lawyers and clients only or it can be an interdisciplinary process which can call on the expertise of child specialists, divorce coaches/family consultants and financial neutrals to assist the parties during the process.
Here the role of the financial specialist is presented by Doreen Gardner Brown while Dr Susan Gamache contributes two chapters which give an overview of the roles of the divorce coach and the child specialist. She introduces these roles clearly and empathically, acknowledging that traditionally the disciplines of mental health and law operated on opposite sides of a family experiencing marital breakdown. She demystifies the roles of coach and child specialist, breaking them down into their component parts. In doing so, she allows the reader to learn the real benefits of incorporating the coach and child specialist into the collaborative model in order to provide support and guidance for the parties during the separation process so that they can work together towards developing a mutually acceptable model for co-parenting in a restructured family post-separation.
Beginners and Advanced Practitioners
This book will be of great interest to practitioners who have trained in collaborative law and who have some cases under their belts as it bravely delves into a realistic analysis of the lawyer’s role in the collaborative case and the lawyer’s new relationship with the client throughout the process. The book will be of equal interest to readers considering undertaking collaborative training and one chapter is set aside to provide a clear step-by-step overview of a collaborative case and the roles of the individual players throughout.
Cameron’s book encapsulates the spirit of generosity and openness that is at the heart of the international community of collaborative practitioners. The lawyer reading this book will be left with a real enthusiasm to ensure that every separating couple has the choice of collaborative law as the process within which to separate with dignity and respect.
As another celebrity divorce is concluded, it is interesting to note the ways in which different couples conduct their divorces and the varying degrees of significance which are placed on the many aspects of their lives which are effected by the breakdown of their marriage.
Many Ways to Skin a Cat
The prominence given to these different components of a celebrity couple’s divorce is almost always given a twist as it passes through the media’s looking-glass. But even so, it is still possible to observe celebrity divorces and conclude that, just as there are many ways to skin a cat, there are many ways to conduct a divorce.
In stark contract to the widely reported drawn-out bitter battle between Paul McCartney and Heather Mills, the terms of Madonna’s divorce were negotiated with seeming civility behind closed doors.
Media reports reflect two interesting contrasts between these two celebrity divorces.
Opting Out of Conflict
Firstly, in the Mills/McCartney battle, conflict was sky high and finances appeared to be the key concern. In Madonna v Ritchie, it appeared that conflict was managed and kept to a minimum while the couple’s children appeared to be at the forefront of considerations. We read reports of Madonna sending a list of 10 access rules to her estranged husband and it emerged in reports that the children of the marriage are to reside with their mother in the United States while spending extended time with their father during school holidays.
Clearly, the issues which parties identify as their key focus in separation will vary from couple to couple. These issues will be influenced by factors including whether the couple have children, each party’s accommodation needs, each party’s financial commitments and needs and each party’s work arrangements and earning capacity.
However, it is a common trend among separating couples that where there are children involved, if the couple can minimise the conflict between themselves, the couple have a greater chance of focussing on their children and the needs of the family. In this way, they can seek to ensure that the children’s interests are catered for when arrangements are being reshaped for family life post-separation.
Does the Separation Process have to Erode Dignity?
The second stark contrast between these two celebrity splits is the dignity retained by the parties during the separation process.
Often the tabloid media reportage does little to assist any individual to retain dignity through the camera lense. However, Mills undoubtedly did herself and McCartney no favours, not only by the manner in which she presented to the media, but also by her apparent unflinching focus on the finances and the bitter and public conflict with her husband - not to mention the incident where she doused Fiona Shackleton, McCartney’s lawyer, with a glass of water : a move which surely brewed over months of extended conflict!
Guy Ritchie, on the other hand, reportedly indicated early on in the separation process that his main concern was for the children of the marriage. On the whole, by conducting negotiations about their separation early in the process and by seeking to keep a lid on the conflict (particularly as seen by the public), Madonna and Ritchie were able to retain their dignity and get on with their lives post-separation in a newly-structured family life.
Maybe Madonna Took the Collaborative Approach
What can be seen from the Madonna/Ritchie divorce is something which Collaborative Family Lawyers experience on a regular basis. That is, where a separating couple can come together in a safe environment and commit to talking openly and frankly about the issues that are of the most concern to them, they can make progress on reaching a separation agreement with significantly less conflict.
Children and Conflict
Also, where both parties identify their children among their primary concerns, and where they work together to develop creative plans for co-parenting post-separation, they can progress swiftly towards identifying what is important for them and structuring arrangements to facilitate both parties.
Where couples chose to separate using the collaborative process, the reduction in conflict and their commitment to coming together to talk through their disagreements with the assistance and guidance of their solicitors, can enable the parties to achieve their goal of separating with dignity and respect. This goal is generally not reached where the parties have little control over the process and where they communicate through conflict.
Collaborative Law in Ireland
Family lawyers started practising Collaborative Law in Ireland over three year ago and it is now the fastest growing method of resolving family law disputes outside of Court in Ireland. More and more couples are choosing Collaborative Law in order to keep control of the process of separation. The process moves at a pace which the parties chose. The parties address the issues which are of most importance to them and work together in an open and frank manner in order to seek solutions to their difficulties.
In Collaborative Law, the parties agree not to go to Court and agree to work together to reach an agreement about all matters arising in their separation. The process is completely confidential and operates whereby the couple engage in a series of face-to-face meetings with their solicitors. The number of meetings depends on the number and complexity of the matters that have to be worked upon and can vary from 4 to over 10. The collaborative process provides a safe environment for the parties to explore options which can form the basis for their separation agreement.
Because the agreement is built by the couple, it is far more likely to be a workable and solid agreement. The parties will generally be significantly more satisfied with this agreement that they would be if a decision were made by a judge who (no matter how good his intentions) can never be expected to fully understand what is best for a family after a short hearing of a family law case.
As both parties work together during the process, if they need the assistance of other professionals such as valuers and accountants, they will agree to retain one collaboratively trained financial neutral who will provide information to them both. There is no need to retain two professionals, as the parties would in the traditional Court process. This can significantly reduce costs for the parties. Also, if the parties need support during the process, collaboratively trained Family Consultants are at hand to support the parties during the separation process.
Creative Options for Separating
At a time when purse-strings are tight, judges are having to come up with creative ways of dealing with a family’s assets in separation and divorce. With Collaborative Law, the couple retains control over the agreement and can work together in a respectful environment to reach an agreement which best suits their needs and those of their children. After all, no-one can understand the operation of a family as well as the parties themselves.
Although not every marriage breaks down under the camera’s spotlight, a lot can be learned from Madonna and Guy Ritchie and their choice to keep conflict to a minimum and to have their children at the forefront of the negotiations. Irish separating couples can now chose to take a leaf from their book and separate with dignity and respect with Collaborative Law.
If you or someone you know would like to know more about Collaborative Law please visit www.lillianosullivan.com and www.acp.ie. Lillian O’Sullivan is a solicitor practicing in Cork and can be contacted on 021 4274711 or at email@example.com.
Collaborative Practice is a new way of resolving family law matters including Divorce, Separation and Parenting Disputes.
There are some key aspects which make it different from other ways of resolving family disputes. These include:
- The parties and their lawyers commit that they will not go to court or threaten to go to court unless it is to rubber stamp an agreement at the end of the process.
- The parties in dispute commit to being honest and open with each other.
- The process involves face-to-face negotiations between the parties in dispute and their lawyers through a series of Four-Way Meetings.
- The parties and their lawyers try to reach an agreement which takes everyone’s needs and interests into account, including those of any children.
How does Collaborative Practice work?
You and your partner work together with specially trained collaborative lawyers. You each receive legal advice and guidance, and together with your lawyers, discuss and resolve issues through face to face meetings called four-way meetings.
Can we go to Court during the Collaborative Process?
At the start, you, your partner and both lawyers sign an agreement disqualifying your collaborative lawyers from representing you at court if the collaborative process breaks down. Neither of the lawyers can act for you in any contested court proceedings. In the unlikely event of the collaborative process breaking down you will instruct another lawyer.
What are the Benefits of not going to Court?
· If everyone commits to the process in good faith, the process is much faster and much less acrimonious than court proceedings.
· You can set your own agenda according to what is most important for you and your family
· You will have a greater degree of control over the process, including the pace at which you negotiate, and you won't risk key decisions being made by a judge who will not be as familiar with your family as you
· The collaborative process is generally far less stressful than court proceedings, which are widely regarded as being one of the most stressful events that a person can encounter.
· With collaborative law there should be no surprises and each party should know what to expect.
· If the process is successful you will have an agreement with your partner which both of you will have had responsibility for, and which, hopefully, should be a more workable framework for post-separation plans than a court-imposed solution.
· You can construct the agreement in order to allow for the type of co-parenting arrangements that you would like for your children after your separation rather than allowing a judge to make that decision for you.
Is every lawyer trained in Collaborative Law?
No. Not every lawyer is trained in Collaborative Law and you will not be able to engage in the process if your partner's lawyer is not trained as a Collaborative Lawyer. Please see the website of the Association of Collaborative Practitioners at http://www.acp.ie/ where you will be able to see a list of Collaborative Lawyers in your area.
If my Partner’s Lawyer is not trained in Collaborative Law, what happens?
In these cases, your lawyer will make every effort to work with your Partner’s solicitor to assist you in resolving issues without the necessity of issuing courtproceedings. The case will not, however, be conducted as a collaborative case.
Will Collaborative Practice work for me?
The collaborative process depends on both parties making full and frank disclosure of all of their assets so that negotiations and discussions can be honest and open. Experience has shown that if the parties commit to openness and honest, there is a strong probability that the process will work and that the agreement will be a far more effective and workable agreement than any arrangements that might be imposed by a court.
How can I find out more?
Please visit the Useful Website Links on this site for a list of websites where you can read more about Collaborative Practice in Ireland and abroad.
If you would like to discuss Collaborative Practice or if you or someone you know is going through marital breakdown and would like more information about Family Law, please contact Lillian O’Sullivan on 021 4274711 or at firstname.lastname@example.org to arrange a free consultation.
Traditional Court Route v Collaborative Law
Often traditional Court applications can be inappropriate for Family Client cases and due to the formalities, the timeframe and the lack of direct input by the clients, the process can sometimes make the experience of separating more difficult and painful than it already is for the couple and their children.
The Couple Knows Best
The Collaborative process recognises that both spouses know their family’s needs better than anyone.
It allows for both spouses to commit to working together, openly and respectfully, in a dignified manner, to reach an agreement which they will construct for themselves and which is acceptable to both spouses.
The Collaborative process gives both parties the opportunity to work in a safe environment with the guidance of their solicitors in order to develop options for the division of their assets, financial planning and parenting into the future.
Every Family is Different
Every family is different. Where a couple has children and wishes for both parents to play a role in co-parenting the children after the separation, the Collaborative process can be the ideal opportunity for the parties to work together to reach an agreement which will be uniquely tailored to their family and which will inevitably be in the best interests of the children. The parties can avoid the difficulties which sometimes arise when they have no direct communication with each other, sending messages and expressing their positions through their legal representatives and ultimately giving up control of planning for their future by leaving a judge decide what should happen.
Children at the Centre
It allows for the parties to ensure that the interests of their children are at the centre of the separation process at all times and can avoid the chance of major long-term decisions affecting children being made at the last minute or by a judge who cannot possibly know what is best for the children as well as their parents do.
Financial Plans for the Future
In relation to financial arrangements regarding division of assets and planning for the future, the Collaborative process enables both spouses to have the maximum input into discussions and the agreement that is reached concerning their finances. It completely removes the risk factor associated with submitting a dispute to the Court for a decision. Both parties can express and discuss their interests and needs so as to reach an agreement that is acceptable to them both.
How Does It Work?
Practically, the Collaborative process requires both spouses to take part in a series of four-way meetings at which they are both present together with their respective solicitors. Usually, between four and eight meetings will be required.
At the outset of the process, the parties expressly agree to be open and honest with each other and to provide all information relevant to the separation.
Support Network Within the Collaborative Process
The parties may choose to consult with other collaboratively trained professionals such as accountants, child specialists and mental health practitioners during the process. The Collaborative Process recognises that Family Law clients often come to their solicitors at a time of immense stress and trauma in their personal lives. Collaborative Lawyers ensure that the necessary supports are in place for their clients in the form of Collaborative Coaches in order to ensure that clients can obtain support if needed in order to assist them to get the best possible outcome for themselves and their families.
Building a Workable Agreement
Through meetings with each other, their legal representatives and any other professionals that they may wish to consult with during the process, the parties work to reach an agreement which reflects their interests and which they believe will be a durable and long-lasting agreement for their separation now and in the future.
Once the Agreement is reached, the parties can then request the Court to grant Orders for Judicial Separation or Divorce and any ancillary or additional Orders as they may agree.
Collaborative Law is an innovative method of giving separating couples control over how they separate and uniquely enables them to make the maximum contribution to every aspect of their Agreement so that they can retain civility and dignity long after they separate.
If you, or someone you know is going through a separation and would like to discuss collaborative law or family law in general, please contact Lillian on 021-4274711 or email to email@example.com