Across the Atlantic, the collaborative approach to separation is well-established. But why are so few UK lawyers up for it? Frances Sieber explains
We all agree that on a marriage or relationship breakdown, it is very easy for emotion to rule the day and for matters to quickly descend into a quagmire of conflict, from which it is very difficult to recover. Lawyers are often perceived to antagonise the situation by drawing out the conflict thereby increasing their fees. How often are there headlines of million pound divorce costs where the assets are little more? Indeed, only last week it was reported that a senior judge has urged a wealthy ex-couple who have already spent ’2 million on legal fees to settle their differences for the sake of the charity they jointly founded to save the Chinese tiger.
Of course, many celebrities and high profile individuals would prefer to stay out of the limelight during a separation or divorce - so it seems surprising that more lawyers do not offer the collaborative approach to family disputes. This model not only seeks to minimise conflict by using the expertise of family consultants but also, crucially, avoids the court system thereby offering total privacy at what is often a very stressful time. Although a couple going through the court can ask for financial matters to be kept private, as Liam Gallagher and Nicole Appleton did during their recent dispute over the financial terms of their divorce settlement, they were unable to prevent the press taking photographs of Gallagher arriving at court with his solicitor Fiona Shackleton. In the same way, a couple will have no control over the high court judge who presides over the proceedings - one may believe in transparency and publish everything while another may favour confidentiality.
In the late 1980's, a new approach was developed by family lawyers in the US which recognised that because the problems on a relationship breakdown are multifaceted, it would be hugely beneficial to bring in other experts to work with the divorcing couple and by doing so, conflict could be minimised and an agreeable solution reached in a much more timely manner. The pioneers of this approach realised that while they, the lawyers, were, naturally, very good at dealing with the legal aspects, a better outcome could be achieved by using psychotherapists to provide emotional support to the divorcing parties. The collaborative approach was born.
Although the collaborative model arrived in England in 2003, few family lawyers are collaboratively trained and, consequently, despite its many advantages over alternative approaches to family conflict, it is still not well known.
Whilst in the US, a psychologist from a therapeutic background, forms part of the team from the beginning, in the UK, due probably to British reticence to 'therapy', family consultants are usually brought in during the process. They can work with the couple on all the major issues or on specific arrangements such as child custody.
The process requires that each party uses a collaboratively trained lawyer and the matter is resolved by discussion, in the course of usually between three and six meetings, behind closed doors. No court is involved, save for getting a consent order approved. The use of the family consultant changes the dynamic. They hold the confidence of the individuals and can give support, if say one party feels intimidated by the other. They act as the 'honest broker' and can be hugely helpful in reaching an agreement.
The process does, of course, rely on both parties wanting to achieve a fair settlement. If there is a breakdown in trust and honesty, then the collaborative lawyers withdraw and the parties start with new lawyers, through the court system.
The collaborative model has a number of distinct advantages, which should make it particularly appealing to celebrities and UHNWs, particularly those with a high profile:
Privacy- discussions are held in private. There is no risk of the parties' private affairs being aired in court and then being sensationalised in the Press.
Convenience</strong> - the parties are not at the mercy of the court timetable. Meetings are arranged to everyone's convenience, and can even be done by Skype.
Availability of expert advice - where specialist advice is needed, for example with cross -border assets and trusts, appropriate advisers, such as accountants, can be brought in to join the team to help achieve a settlement.
Customised result- where situations or assets are complex, then an agreement can be reached which is tailored to the individual needs, rather than the often blunt approach of the court.
Respect and preservation of the relationship - where conflict is successfully avoided or minimised, there is more likelihood of an ongoing relationship, which is particularly important where there are children.
With an emphasis by the court on the parties sorting matters out themselves and the current push towards mediation, the collaborative approach is advantageous as it provides both therapeutic support and legal advice. In sharp contrast, in mediation, the parties are usually alone in the room with the mediator who is not allowed to give legal advice. Hence, there is little support and so the failure of many mediations.
Where a collaborative approach is not appropriate, the use a family consultant in solicitor negotiation can positively change the whole balance to the negotiation and make it more likely to succeed.
While the collaborative approach is not for everyone, it provides a better forum for settlement and for a future ongoing relationship between the parties, which is all too important where there are children. Given its success in the US, it is surprising that the approach is not more widespread this side of the pond.
Frances Sieber is a partner, accredited family lawyer and collaborative lawyer in the family department of Spring Law