COLLABORATION – A NEW APPROACH TO SEPARATION

Consensus article photograph by Jenna Thomson

COLLABORATIVE FAMILY LAW – Breaking up is hard to do and the end of any relationship whether it be a marriage or cohabitation is always a difficult time for couples. Children, grandparents and even friends can be affected and the implications of separation can be very far reaching.

Emotions can run high in the days and weeks after separation and people can often act out of character causing a breakdown in communication between parties.

There are practical matters to consider, such as who will look after the children (contact / access and residence / custody) and who will pay the mortgage or rent. In the longer term property and debts have to be divided up and all of these issues can be fraught with problems.

As members of the Family Law Association and trained Collaborative Lawyers, the Family Law team at Macleod & MaCallum is committed to trying to resolve issues rather than inflame situations between separating couples. We have found that for many couples the Collaborative process is a very effective way for couples to reach agreement about their children and their finances following separation.

What is Collaboration?

The essence of Collaborative Family Law is that it is a way of resolving issues or conflicts which does not rely on decisions imposed by the Court but which allows the parties themselves to make decisions and reach agreements which are in the best interests of them and their children.

There is a commitment by the parties and their solicitors / divorce lawyers to avoid Court action and instead to take part in a series of four-way meetings at which each party attends with their solicitor / divorce lawyer. The goal is to minimise if possible any negative financial and emotional consequences of lengthy disputes or Court actions on the whole family and to reach fair and workable agreements in respect of money and children.

In the process both parties retain separate, specially trained solicitors / divorce solicitors whose only job is to help them settle the case. If that is not possible the solicitors are out of a job and cannot represent either client in contested court proceedings. All participants agree to work together respectfully, honestly and in good faith to achieve win-win situations. The process can be very creative with 4 parties working together to devise individualised settlement scenarios.

How is this different from the traditional adversarial divorce process?

In Collaboration, all participate in an open, honest exchange of information.

Both parties agree that they will insulate their children from their disputes.

Parties jointly instruct experts such as accountants and financial advisors.

Creative efforts to meet both parties’ needs replace tactical bargaining backed by threats of litigation.

Solicitors must guide the process to settlement or withdraw, unlike adversarial solicitors who remain involved whether the case settles or not.

Both sides including solicitors sign a binding agreement known as the participation agreement which sets out the framework within which the process operates.

Clearly this process cannot work for all couples, for example where there are issues of domestic abuse but the Collaboration process can provide positive outcomes for separating couples in a shorter period of time compared to other methods of dispute resolution such as traditional negotiation or Court action. In many cases couples are able to leave the process able to make decisions about the future welfare of their children and property division.

Whilst it is clear that Collaborative Family Law is not for everyone, it can allow couples to resolve their differences in a much more positive way so as to make breaking up slightly less hard to do.

 

 

Morag S. MacIntosh

Morag MacIntosh
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Fiona Campbell

Fiona Campbell
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Jenna Thomson

Jenna Thomson
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Scott Dallas

Scott Dallas
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January 9, 2015