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Jersey & Guernsey Law Review – February 2008
SHORTER ARTICLES AND NOTES
COLLABORATIVE LAW – HOW TO HAVE A GOOD DIVORCE
Barbara Corbett
1 There are few areas of law with quite such a reputation for acrimony and heartbreak as Family Law. The breaking up of a relationship and the fracturing of a family can have devastating consequences for all those involved, not least the children. Frequently lawyers are blamed for fanning the flames of family disputes, and sometimes rightly so. Inevitably the process of providing for two households out of one can lead to unpleasantness and bitterness, and the current court based resolutions, no matter how sensitively dealt with, can leave parties feeling aggrieved. In most jurisdictions it is now accepted that there should be a greater emphasis on alternatives to fighting things out in court, especially in the particularly emotive discipline of Family Law.
Alternative dispute resolution in Jersey
2 There has been increasing interest in methods of alternative dispute resolution (“ADR”), and in particular, mediation, in Jersey for some time. In June 2004, changes were introduced to the procedural rules of both the Royal Court and the Petty Debts Court so that it is now possible to obtain a stay of proceedings in both courts to enable parties to try and resolve their disputes through ADR. Rule 6/28 of the Royal Court Rules describes ADR as “any method of resolving disputes other than through the normal trial process, and without prejudice to the generality of the foregoing, includes mediation and conciliation”. In the three years since the changes to the rules, mediation in civil and commercial disputes has become an accepted alternative to the pursuit of litigation. As a consequence, there are now 21 civil and commercial members of the Jersey Accredited Mediators Association, one accredited Jersey member of the Centre for Effective Dispute Resolution and 3 members of the Jersey Family Mediation Service. A significant number of mediations in civil and commercial cases have been successfully completed, although that will not always be widely appreciated given the confidential nature of any settlement agreement reached.
Family ADR in Jersey
3 There has also been growth in mediation in family disputes, and particularly so since the Matrimonial Causes Rules 2005 encourages parties to mediate (Rule 47(6)(b)) with a view to furthering the overriding objective of the Court which is to deal with cases justly. The family mediators in the Island have, until very recently, only dealt with issues relating to children, but are now able to offer “all-issues” mediation, meaning that they can also deal with financial matters. In addition, in some “big money” cases or matters involving trusts, family disputes have been referred to UK mediators working on the civil/commercial mediation model. Mediation is, however, not the only form of ADR now available in Jersey to help resolve family problems. This article examines the growing use of a new process known as “Collaborative Law.”
Collaborative Law
4 Collaborative Law is a new way of resolving disputes arising out of relationship breakdown and divorce which aims to resolve matters without recourse to the courts. The process started in the 1990s in California, among family lawyers who began to question a legal system which allowed their clients to spend thousands of dollars on fighting in court only to end up dissatisfied with the outcome, in need of therapy, and possibly never seeing their children again. Collaborative Law crossed the Atlantic in September 2003, when the first twelve collaborative lawyers were trained in London. There are now more than 750 trained collaborative lawyers in the United Kingdom, six in Jersey and one in Guernsey. In the Channel Islands, a practice group has been formed (known as a “POD”) of collaborative lawyers following a successful launch of Collaborative Law in St Helier in November 2006.
What is Collaborative Law?
5 Collaborative Law deals with divorce and other family disputes with dignity, putting the control of the process in the hands of the parties instead of the courts. This is done by the couple agreeing not to make contested applications to court. Each spouse instructs a specially trained collaborative lawyer, and instead of negotiation through correspondence coupled with court action, all negotiations and work towards a settlement take place in face to face four-way meetings with both clients and both collaborative lawyers present and actively participating.
Can any lawyer be a collaborative lawyer?
6 Because Collaborative Law is a very different way of working from traditional court based processes, it is important to be familiar with the procedures and skills involved. Collaborative lawyers are specifically trained and accredited. In the UK this is under the auspices of “Resolution” (formerly the Solicitors Family Law Association) which is part of the International Academy of Collaborative Professionals. The qualification of collaborative lawyer is available to solicitors/barristers/advocates who have practised family law for at least three years post-qualification. The training consists of a specialist three day training course run by Resolution followed by further mediation skills training. On-going training is also required each year, and each collaborative lawyer is expected to attend regular POD meetings. Currently most training takes place in the UK, but there is scope for training to be provided in the Channel Islands if demand were sufficient. Channel Island lawyers wishing to become collaborative lawyers would need to join Resolution as associate members.
What are the goals of Collaborative Law?
7 The goals are to assist parties to resolve all matters arising out of separation and relationship breakdown in a fair, dignified and respectful way for the benefit of the whole family, and particularly any children of that family. The aim is also to deal with problems in a holistic way, not just as a balance sheet.
How does it work?
8 Both clients and their lawyers sign an agreement (known as the ‘Participation Agreement’) part of which involves a commitment not to go to court. That commitment does not prevent either client from subsequently litigating his or her differences if he or she decides that that is the more appropriate or necessary course to take, but the commitment given by the lawyers states that if the collaborative process breaks down and one party subsequently wishes to litigate, both parties have to instruct new lawyers. This focuses everyone’s attention on reaching a settlement. The lawyers do not want to lose the business and the clients do not want to lose their first choice of lawyer or have the expense of starting again with another one.
9 The clients have greater control of the entire process in Collaborative Law than in any more traditional approach. Rather than being rushed into proceedings or having to wait for the court timetable to accommodate them, they can decide when and where to have their four-way meetings. The collaborative process offers the flexibility for people to proceed at their own pace, gaining control over the process which, in turn, can aid negotiation and reduce confrontation. An early first meeting can help to allay fears and misunderstandings, and because the Participation Agreement also includes an agreement for the clients to be open and honest in all of their disclosure of information, an atmosphere of trust is engendered. The lawyers play their part too. They are committed to ensuring that negotiations are conducted in as positive and amicable a way as possible without aggression, posturing or tactics designed to wrong foot the other side. Because all the negotiations take place together around the table, the scope for gamesmanship is substantially reduced.
10 At the first meeting the process is explained to the clients and the Participation Agreement is signed by the clients and lawyers once the clients are sure that the process is right for them. If they are not sure, entering into any agreement could be postponed to a second meeting. Once the agreement is signed, other issues can be discussed, such as arrangements for disclosure. At the initial meeting it is also possible for immediate matters to be resolved such as whether either party should leave the family home, what interim maintenance might be appropriate, what the clients should be saying to their children about their difficulties, and how they should be saying it, and what the immediate child contact arrangements should be. The funding of the matter is also discussed at the first meeting. For the process to work properly, there has to be equal access to legal advice. Each client therefore has to be able to pay his or her lawyer, and if that means the economically advantaged spouse paying both sets of legal fees for the first couple of meetings, then that is what is likely to happen. Unfortunately, the legal aid system in Jersey does not accommodate Collaborative Law’s requirement for new lawyers to be instructed in the event of a failure of the process, but there is no reason why it should not do so in the future. Once the process and its value are properly understood, an appropriate amendment could easily be made to current legal aid practice. Provision could be made, for instance, for further legal aid certificates to be issued in the event that the collaborative process were to break down.
11 The next and subsequent meetings are arranged to fit in with the needs and wishes of the clients. If it is clear that the information about, for example, pensions, is not going to be available for eight weeks, then there may be no need to have a further meeting until after that, so discussions can continue with all the information available. However, other matters, such as a new contact schedule between parents and children might need to be checked and considered the next week.
12 The beauty of Collaborative Law is that anything can be discussed; anything which is of concern to the parties, even if a court might not see it as relevant. Discussions around the level of involvement in family life of other family members, the extent to which the parties can call on outside help with their finances and differing parenting styles can all take place. Not many courts would wish to express an opinion as to whether or not mother-in-law is too bossy, the wife’s Daddy can buy her a house to live in while the family home is being sold or that choc ice and chips is a suitable supper for a six year old.
Involvement of other professionals
13 The idea of Collaborative Law is that with the help of their lawyers, the parties are able to discuss and negotiate a settlement themselves, without a court having to impose orders on either side. In order to do this, however, they sometimes need help from other professionals. If the finances are complex it may be necessary to instruct a “Financial Neutral” (an expert in this area) to assist. Typically the parties will see a financial adviser, accountant or pensions expert together in the collaborative process, rather than both parties having their own “hired gun”. The Financial Neutral can assist with disclosure, explaining perhaps to a sceptical spouse why assets need to be discounted in certain circumstances. He or she can also advise the parties what would be the best investments to make with the available assets, which assets should be kept and which should be sold, to achieve the parties’ aims. A great deal of suspicion and mistrust can be avoided if the same person helps with the preparation of the expenditure sheets, in the presence of both parties. In order to assist the collaborative process, the Financial Neutral needs to understand how the process works, and training is available in the UK for this.
14 Another further and very valuable professional to be involved is the “Family Consultant”. A Family Consultant is usually a professional with a social work and possibly a mediation background, who is experienced in dealing with matters relating to children. Within the court process this role is undertaken by a Court Welfare Officer, but in Collaborative Law a Family Consultant can have more time to investigate the circumstances surrounding disagreements over contact with, and residence of, children and help settle other disputes the parents may have, perhaps about different parenting styles, or choice of school. The Family Consultant meets both parents, and frequently the children too. If necessary the Family Consultant can also attend a four-way meeting with the lawyers. It all depends on what the parties feel will be of the most benefit to them.
How does Collaborative Law differ from Mediation?
15 In family mediation an independent mediator assists the parties to come to agreement and resolve their dispute together. The mediator is independent and impartial and cannot advise the parties either on legal matters or in respect of any settlement. Mediation as a form of ADR is very valuable, but is not suitable for every client or every dispute. Legal advisers do not usually play a part in family mediation unless a civil/commercial model has been adopted. (See paragraph 3 above.)
16 In collaborative family law each side has his or her own fully qualified family lawyer who can advise throughout the process. Each lawyer is able to advise his client in respect of the legal position, and can give his view of the likely outcome if the case were to go to court. This advice is frequently given in the presence of the other lawyer and client, and can lead to the lawyers debating matters where there are differing views. By doing this, the lawyers fulfil their duty to their client of giving full and detailed legal advice, but equally, if the client wishes to reach a settlement which is significantly at odds with the legal position he or she can do so. The lawyers retain their duty to act in their client’s best interests at all times, but the focus is very much to achieve a consensus. Although the negotiations all take place in the four way meetings, it is still open to clients and their own lawyers to have separate meetings, and of course these remain privileged. However, if a client were to reveal to his own lawyer that he had not fully disclosed all the assets, or was misleading the other side, the lawyer has a duty to draw the client’s attention to the Participation Agreement which the client has signed promising to be open and honest. If the client will not agree to the information being disclosed, then the lawyer would need to speak to his opposite number to explain that there may be a problem (without divulging any information he has not been given permission to divulge). The process would then be suspended, and if the client still refused to uphold the Participation Agreement the parties would both need to find new lawyers.
17 There are times when what is important to a client, possibly in emotional terms, is not what an objective lawyer would view as important. One person may be desperate to keep the house at all costs, because she has lovingly restored and decorated it and feels a very close connection with it. In order to retain that, she may be willing to give up far more valuable assets such as shares or pensions. Another person may want to be free to change her life after divorce and not be tied down. She may be willing to allow the other spouse to have the house in return for something less valuable, so that she can “escape”. As long as the parties have had proper advice, they can take control of their settlement, and not be straitjacketed into a purely financial agreement.
18 Another advantage of both parties having their own lawyer with them is confidence. If one spouse is less assertive than the other, or less knowledgeable about financial matters, to have a lawyer present who can advise, and possibly a Financial Neutral as well, can reassure that spouse that he or she is not being bamboozled by a more dominant partner.
19 In family mediations where lawyers are not normally present, an agreement can be drawn up but it would usually need to be referred to the parties’ lawyers for drafting into a consent order for submission to court and final ratification. Unfortunately, at this stage the agreement can often unravel, if legal advice has not been taken during the course of the mediation. In Collaborative Law a consent order can be prepared and signed by all parties and submitted to court as part of the same process. However, in both instances, until an order of the court is ultimately made, it would be dangerous for either party to assume that the agreement would necessarily be endorsed by the court.
How can you get binding orders if you agree not to go to court?
20 The agreement not to go to court is an agreement not to make any hostile or contested applications. In order for there to be a divorce and a final binding consent order, the court does of course have to be involved, and there is no problem in Collaborative Law with divorce proceedings being started in a consensual manner. Typically, the issue of the divorce petition, if there is going to be one, is discussed at the first or second four-way meeting. Frequently, in England, if a behaviour petition is the only way to obtain a divorce within the required timescale for the parties, the potential respondent will be asked to prepare the particulars (with the assistance of his or her lawyer) to allow the petitioner to divorce on those terms. This ensures that the parties know what needs to be included in a petition, and it can reduce the hurt caused by a petition in which there are allegations sufficient to found a divorce, being sprung upon a spouse.
21 Once agreement has been reached in respect of finances, the final consent order is drawn up by the lawyers including special clauses to alert the judiciary to the collaborative nature of the negotiations (to avoid any knee jerk reaction to non-standard agreements). In many collaborative divorces the final meeting is arranged for the parties to sign the consent order, to deal with practical issues and to obtain closure of what is inevitably an emotionally difficult time.
Do good family lawyers not do all this anyway? How is Collaborative Law different?
22 Good family lawyers do listen to their clients and look at more than just the narrow issues which can be litigated. But in a traditional case there is no guarantee that the lawyer on the other side will be focussed in quite the same way. By specifically entering into the Participation Agreement and working with another collaborative lawyer there is less scope for the family lawyer to be negotiating on the one hand, but on the other thinking that if it does not work out an application to the court can always be made without undue difficulty. In Collaborative Law all participants are committed to the success of the process with an outcome for the parties which is right for them, not something to which they reluctantly agree at the court door because they are frightened by their mounting legal costs, or a solution imposed by a judge who, however wise, could not know all the factors weighing on the parties’ minds.
23 Where negotiations in the traditional process in round-table meetings between enlightened family lawyers take place, it can be, and usually is, a very positive experience for the parties. It is very much better than the aggressive “see you in court” or “take them for every penny” lawyers with whom some clients and practitioners might be familiar and who should be viewed as relics from a bygone age. But even this progressive way of resolving family law disputes within the traditional process, good though it is, is not Collaborative Law. The commitment not to litigate makes a fundamental difference. Although it is always open to clients to reject the collaborative way and, with the help of new lawyers, go to court, in reality this happens very rarely. The (admittedly only anecdotal at this stage) evidence available to Resolution in the UK suggests a very low failure rate of the collaborative process. Further, the collaborative process is almost always quicker than the traditional one, with significantly greater levels of client satisfaction.
Can Collaborative Law work for all divorce clients?
24 Collaborative Law is not suitable for everybody. Where there is domestic abuse or serious mental health issues it may not be appropriate. It is also not appropriate where one or both parties are not prepared to be completely open with disclosure of their information. For the process to run as it should it also requires both parties’ lawyers to be trained collaborative lawyers. However, for a client wanting a dignified non-aggressive resolution to his or her problems then it is certainly worth a try. Clients who benefit most from Collaborative Law are those who -
· wish to put their children’s needs and interests at the heart of any agreement;
· do not wish to incur the costs and risk the animosity generated by litigation;
· would like to maintain communication and a workable relationship with their former partner in the future;
· wish to remain in contact with wider family and friends in the future;
· want to retain control over decisions about changes to their finances and arrangements for their children;
· are willing to take advice from experts when necessary;
· do not want to leave decisions about their personal affairs to their lawyer or a complete stranger (a judge);
· do not want to seek revenge on, or punish their spouse;
· welcome the assistance of their lawyer to enable them to negotiate in face to face meetings.
Is Collaborative Law more expensive than conventional divorce?
25 Collaborative Law is not designed to be a cheap option. It is designed to be a better option. In Collaborative Law more time is spent in meetings than in a conventional divorce, and there is a consequent cost in lawyers’ time and therefore money. However, there is much less (almost no) correspondence, no applications or court documents to be prepared (apart from a divorce petition and final consent order) and fewer court fees. Disclosure can be prepared in a form agreed by the parties, with an agreed level of documentation appropriate to the circumstances. This may be cheaper with a couple on regular salaries with joint accounts, but no different if complex financial arrangements are being dealt with. An increase in trust, an ability to ask questions and get answers immediately from the parties themselves rather than through the (not always accurate) filter of the lawyers can also lead to a reduction in costs. Doing away with court hearings and preparation also keeps costs down.
26 In emotional terms though, the costs of divorcing the collaborative way are considerably cheaper. By communicating and considering the whole family circumstances, not just narrow financial ones, the parties are much more likely to maintain a good relationship after the divorce. This is better for the children, the wider family and the parties themselves. Instead of using their energies worrying about a stressful divorce and protracted litigation, they can get on with the rest of their lives.
Is it a better way?
27 On a recent occasion, on describing myself as a collaborative family lawyer to someone, he told me with glee of his own divorce and what a fantastically aggressive divorce lawyer he had had, so much so that he had made the lawyer on the other side cry. He told me his lawyer was so good that he had avoided paying any maintenance for his family and got “a really good deal”. Some time later, at the same event, this man was asked if he had any grandchildren. The reply was “I don’t know. I haven’t seen my children since the divorce”. That is why Collaborative Law is a better way.
Barbara Corbett is an English solicitor and collaborative lawyer and a member of the International Academy of Collaborative Professionals. She is Head of Family Law at Hanson Renouf in Jersey.
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