4th Oct 2016

Securing a constructive separation outside the courtroom

Experienced collaborative family law practitioner, Stephen Root looks at the virtues of an amicable split

Approximately ten years ago when I was feeling rather jaded after a bruising court battle, I bumped into a solicitor from another firm. I told her about my case but she was full of enthusiasm for an alternative process - collaborative law. I was encouraged by her positive attitude and, looking into the specialised training required, I soon came to the conclusion that an alternative approach which keeps people out of court offered real benefits for all parties. 

Court battles can be bruising for all concerned 

Ten years on it seems an appropriate time for me to reflect on whether the process does deliver what I had hoped at the outset.

Over my career I have learnt that court litigation often only serves to push people further apart. Solutions are imposed by a judge who doesn’t know the family involved and sees them in the artificial light of a courtroom. Solicitors feel compelled to take entrenched positions and to negotiate the best possible deal for their own client. In fact, it can all too frequently seem that at least some members of the profession relish the fight rather than looking at the bigger picture and the impact that this had on the wider family. 

after court action the parties will not be talking to each other on good terms ever again

One thing I can guarantee is that after court action the parties will not be talking to each other on good terms ever again. To me, this seems very wrong – especially when there were children involved as the bitterness and anger could and would last for years. To me, a process that depends on parties speaking to each other with a positive emphasis on finding solutions remains very attractive. 

The collaborative approach in action

How does a collaborative case work in practice? The answer is extremely well in most cases.

There will always be some people who will need to battle for their rights, and for them the court route is appropriate. However I believe that most people are fundamentally decent and when a relationship comes to an end would rather deal with it in a civilised and sensible manner. Collaborative law allows people to do this.

most people would rather deal with relationship breakdown in a civilised and sensible manner

The parties commit to staying out of court and to finding a solution face to face around a table. The solicitors are present to help and give advice and to steer the parties if they need it. Everyone must talk to each other and they have to listen to each other. There is nearly always common ground that the solicitors can use to build on and the atmosphere in the room is very different from a court battle as you know everyone round the table is committed to finding a solution.

there is nearly always common ground that the solicitors can use to build on

I will not pretend that it is always easy or straightforward. I’ve had couples who’ve had full blown rows in the middle of a collaborative meeting. However, having now completed scores of collaborative cases I’ve only ever had two that failed and this failure rate is quite typical of the process. It is nearly always successful.

Added to that, it is almost certain that the two clients will maintain some form of decent relationship after formal separation. This is vital if there are children involved as the couple will need to be able to speak to each other and to attend events and functions together in the future. In fact, it is not at all unusual at the end of a collaborative meeting for one of the clients to offer the other a lift home or suggest that they go for coffee.

There is the added bonus that collaboration is completely private and confidential. Court proceedings can be held in public and whilst this is unusual in the family court, privacy is not completely guaranteed.

Staying out of court does not mean that you are taking a ‘soft option’. The law behind any settlement reached remains exactly the same as if you were in court but staying out of the courtroom enables clients to deal with the issues arising from their separation in a sensible and constructive fashion. 

To discuss the collaborative process or to arrange a free, no obligation consultation, contact Stephen Root  at Berwins Solicitors. 

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