An article by Justin Makin.

Family Breakdown: The Amicable Solution

Like it or not relationship breakdown is a reality for many families. The current divorce rate stands at roughly fifty percent with a similar number of unmarried couples also experiencing breakdowns the truth is that our community needs to find workable solutions fast. This increasing trend of family breakdown highlights the urgent need for practical mechanisms to be put in place to help those involved reach solutions which they can live and work with. In the first instance people will, quite understandably, turn to the law to give guidance but the fact is that the legal system is failing them and perhaps more importantly their children and extended family group.

As family lawyers we have had to accept that the Law is more often than not a blunt and inadequate tool to deal with these issues. Furthermore, the perception that our clients frequently have is that by involving lawyers things will only get worse, exacerbate the emotional turmoil and invariably cost money which they can ill afford.

Whilst the courts are adopting a more conciliatory approach the fact remains that little or no real consideration is given to the emotional and psychological issues that all family members have to deal with. As a result, the reality is that court imposed decisions produce solutions which in the long term either prove to be unworkable or set the tone for ongoing bitterness and acrimony between the adults which in turn can have a devastating effect on their children.

Out of all this gloom emerges a new way of thinking and approaching these very difficult issues which is known as Collaborative Law which was formulated in the US and has proved to be successful as an alternative to the traditional adversarial legal system. We have embraced this method prompting us to set up the Kent and East Sussex Collaborative Family Law group which is affiliated to the UK Collaborative Family Law Group where all Lawyers have been trained in assisting couples to find practical and sympathetic solutions to their individual problems.

So how is Collaborative Law different from the traditional legal process? At its heart is a fundamental principle requiring all participants (the parties and their lawyers) to enter into a formal commitment not to refer the issues under discussion to the court or to threaten court proceedings so that the emphasis is on reaching a dignified and amicable solution. This commitment is pivotal to the collaborative process and all participants are required to sign a contract so that if either party wishes to refer the matter to the court then both solicitors will cease to act thereby requiring both parties to instruct new lawyers. This is critical because the emphasis is not only on the parties but also their legal advisers to find a solution and to work as a team so that if a successful outcome cannot be achieved then the team as a whole will have failed.

It is our experience that individuals feel isolated by the current legal process and that their concerns are often overlooked or worse still dismissed as unimportant. The sense of powerlessness that this creates is entirely wrong and one of the chief objectives of Collaborative Law is to ensure that the individuals own and have control over the process which after all is going to have a lasting effect upon them and their families in the broadest sense. In order to achieve this the collaborative process works on the basis that there will be a series of round table (four way) meetings where all the participants will freely and openly discuss the issues that are causing them concern on the basis that both parties’ lawyers will freely give their advice in the presence of the other so as to facilitate meaningful dialogue. It must be emphasised that these discussions (save where they relate to financial disclosure) will be “without prejudice” which means that neither party can refer to these discussions in the unlikely event that a referral to the court is made.

Whilst it will of course be necessary for the lawyers to discuss some matters between themselves a basic tenet of Collaborative Law is that all negotiations take place at the round table meeting so that all parties are involved and aware of the negotiation process.

A recurring problem with the current legal system is that clients perceive their lawyers to be “cooking up deals” without their knowledge. Whilst this is often not the case the perception remains which often puts the lawyer and their client at loggerheads which obviously is in no-one’s interests. Collaborative Law strives to create an atmosphere of trust and goodwill, between all concerned being established.

As experienced Family lawyers we want to reduce the tensions and strains arising out of family breakdown. The cynics may say that that is against our interests because it will lead to lower legal fees than contested court proceedings but that entirely misses the point that we (as solicitors) are involved because we want to help find a solution rather than line our pockets. After all a string of unhappy and impoverished clients will inevitably lead us to questioning our own value to society as a whole. Lawyers may be the target of dissatisfaction but we too are human and the sense of fulfilment when a couple can part amicably is priceless. Moreover we recognise our limitations in the overall process and actively encourage our clients to pursue other (and often cheaper) forms of resolution by way of family therapy, for example.

Collaborative Law may not be suitable for all situations. However, it is a realistic and workable alternative to the traditional gladiatorial approach unwittingly created by the current legal process. We will, albeit reluctantly, act as gladiators but would urge all to embrace Collaborative Law, with its emphasis on inclusion and ownership, to enable those experiencing family breakdown to find a workable solution that they themselves have created and can live with.

©Justin Makin 2005