Bringing harmony to divorce

Authors: James Stewart is a partner of Manches LLP and Charlotte Bradley a partner of Kingsley Napley. They were two of the first solicitors in this jurisdiction to train as collaborative lawyers

BREAKING up is never easy and, no matter how the breakdown arises, litigation over the terms of the separation will make things even more difficult. Sir Paul McCartney’s divorce from Lady McCartney demonstrates the most extreme example of an acrimonious break-up. However, the publicity obscures that, throughout the UK, family lawyers and separating couples are striving to reduce acrimony in divorce. Resolution, an organisation of almost 5,000 family solicitors, has actively sought to ensure that family law disputes are dealt with in a way designed to preserve people’s dignity and to encourage agreement. Resolution also encourages the use of dispute resolution methods other than litigation, such as mediation and collaborative law (www.resolution.org.uk).

One of the best ways to achieve a dignified split is to use the collaborative law process. It is relatively new to this country, the first family collaborative lawyers having trained in October 2003. Three years on there are 1,000 trained family collaborative lawyers in the UK and Ireland. With the growth in their numbers in London, the time has come to mark the development with a formal launch in London. This takes place tomorrow, supported by Sir Mark Potter, President of the High Court Family Division. The central feature of process is a pledge by the couple and their lawyers not to litigate the issues in court. This provides a commitment from all sides to resolve disputes through co-operative and respectful negotiation, allowing the couple and their lawyers to focus on what is important to them, rather than the strict requirements of the court’s procedures and timetables. By avoiding expensive litigation, the approach can reduce costs. But its main advantages are speed and flexibility.

After a long and painful relationship breakdown, many clients arrive in their solicitors’ offices seeking a speedy resolution. The collaborative process offers the flexibility for people to go at their own pace and, for some, the issues can be resolved quite quickly through a series of face-to-face meetings that all attend. The sense of control clients gain aids negotiation and the reduced confrontation helps to preserve family relationships in the longer term — a huge benefit, given the evidence that children do much better after divorce if their parents can co-operate over their care and upbringing. An important element of the process is the involvement of other experts, where appropriate, including accountants, financial advisers and family consultants (those from a therapeutic or counselling background) who can work with the couples to help to deal with the emotional fallout of the family breakdown and the arrangements for the children.

It is clear from the cases upon which we have collaborated that the clients’ desire to co-parent in the future was every bit as important as the achievement of a financial settlement that was fair. Clients who consult with a family lawyer usually have no experience of divorce. They have little knowledge of the divorce process and are often unprepared for the psychological challenges that inevitably accompany divorce and the effect their emotions may have on their decision-making abilities. They know little about the impact of divorce on children and may have given little thought on breaking the news to their children. A divorcing client may be fearful about the future and regard his or her spouse with suspicion and mistrust. The collaborative process is clientdriven and designed to empower clients to take responsibility and acknowledge all the family’s needs but with the support and advice of lawyers who are representing their interests but working within a team.

An important element of the process is agreement that, should it break down, both clients need to appoint new legal teams to take the matter to go to court. While this may seem punitive, we have found (supporting the experience in the US and Canada) that this is a powerful tool to encourage clients to remain at the negotiating table.

While the collaborative approach may not be suitable for all, it is clear that it can suit all types of divorce, ranging from families of limited means to the big-money cases that are all too frequently reported in the press. As Central London solicitors, many of our cases involve families where assets are substantial and where there is an international dimension. While these cases are potentially litigious, they do not have to go through the courts. A number of big-money cases have been successfully concluded collaboratively basis: by way of example, we have recently completed a case where we acted for an international couple with assets of more than £35 million — possibly the highest value collaborative case in the UK.

We should emphasise that the process is not an easy option for the clients or the lawyers. But with the right attitude, even the wealthiest clients can avoid the risks of publicity and unpredictable outcomes that can result from taking their case through the courts.