Surviving relationship and marital breakdown: Alternatives to court battles.
Sadly, marriage breakdown is on the increase in Ireland and the trend is continuing to rise. Couples who are separating often go down the route of going through the courts simply because they are not aware of the alternatives. Family Mediation and Collaborative Law are services that can help couples to work out an arrangement for the future in a way that is practical and suitable for them and for their children. The couple are encouraged to work together to find solutions. We asked Anne O’Neill from Family Law Consultants in Cork, to explain the process.
Here is what she has to say:
Your relationship has broken down and with it trust seems to have departed and anger and depression fill your days, your ex-partner’s anger, your anger and sometimes your children’s anger. You are completely overwhelmed and have no idea where to turn. Everyone tells you something different and everyone is an expert! Does this describe you or someone you know?
This state of complete bewilderment, punctuated by profound grief, sums up most of the people who consult with me. To help people to focus, I ask one very important question: “How do you think you would like to do this?” The vast majority of people respond that they would like to stay out of court and to try and have a good co-parenting relationship with their ex. I go on to ask a second very important question: “What is the most important thing to you?” The vast majority of people will identify the welfare of their children as their most important concern. The third question that I ask is: “Would you like to be able to dance at your child’s wedding with your ex? ”Sometimes people are not sure how to answer this question at first but it does give them pause for reflection. And the last and 4th question is: “If you go back in your memory to the day you married and you were to have had a premonition that this day would come, how do you think you would have seen yourself handling it.” Again people can be a little mystified by this question but when they think about the love and respect that they felt for their partner on the day they married, they will usually tell me that they would have seen themselves being civilized and fair. Another way of asking this is question is to ask people to project forward say 10 years and ask them how they would like to look back on this in terms of their behaviour, current relationship with other party/parent, relationships between parents and children, children’s health and welfare and relationships with extended family? I find that answering these questions brings a person back to what is important to them. Only when a person is in that zone can they make a realistic assessment of the options available to them and pick the one best suited to their needs.
For the individuals who want to deal with their affairs with dignity and civility, people who see the children as their priority and want to focus on co-parenting and equitable division of assets, then collaboration and mediation offer great possibilities. Collaborative law or collaborative practise came to Ireland about 4/5 years ago and so in the legal world it is very new indeed. Collaboratively trained solicitors work in tandem with other collaboratively trained professionals, all cooperating and working in a team like way to find tailor-made solutions for each particular family to transit from a one family structure to a two unit structure. Collaborative lawyers are essentially peace makers rather than war mongers. They look for solutions that meet everyone’s needs rather than seeking the biggest slice of the pie for their particular client. Why would they do that? Because you, the client, have told them that you want notwithstanding the breakdown to nurture peace and good will in your family for the health and welfare of your children. They co-operate with one another rather than pitting themselves against each other. To do this they have to be specially trained as this kind of work requires good trusting relationships between the professional team. Collaborative lawyers are frequently trained mediators and will use their mediation skills in the collaboration. To help the lawyers to manage the high emotions that are almost always present in these situations, the lawyers will work with collaborative coaches. The coaches come from a therapeutic background and their job is to help the couple manage their emotions to enable them to learn how to re-communicate going forward but also to help them communicate while they are sorting out their affairs. Other collaboratively trained professionals are introduced into the team on a needs must basis, such as financial specialists and child specialists. The beauty of collaboration is that it offers people the chance to avail of all the expertise available to help them through their difficulties in one place and at one time and not only that but all the professionals have learned how to communicate effectively with one another because they have all undergone the same training. On a practical level this all happens at face to face meetings called 4 ways or 6 ways held periodically. From my 25 years of experience as a family lawyer, I find collaborative dispute resolution to be the most effective, adaptable and finely tuned tool available to people in crisis and the best value for money.
Another way of resolving relationship or marital disputes is mediation. Mediation is in the same family of alternative dispute resolution as collaboration but they are different processes. Mediators also have to undergo rigorous training. Mediators work as impartial facilitators who allow each side to be heard. They do this in face to face meetings with the disputing parties by asking them structured questions designed to move them along from their stuck position towards acceptable solutions. The solutions are created by the parties themselves and this ensures their effectiveness. The parties are required to work to design their own resolution. Most mediators work in a triangular configuration meaning one mediator to a couple. However, some mediators now offer co-mediation in family disputes and this is seen by many as more effective because it offers balance in that it is less likely that one party will feel excluded in this model.
Another alternative to the court are settlement negotiations. These are talks between solicitors with the clients present, ideally in my view conducted with a mediator or coach also present, sometimes without, with a view to reaching resolutions rather than seeking gain for one side over the other. Such negotiations can adopt varying styles, sometimes the parties sit around the same table and sometimes they sit in different rooms and the solicitors meet together having taken instructions. Sometimes the meetings take place in the court house and sometimes in the Dispute Resolution Centre which we are lucky enough to have in Cork. Sometimes the mediator may shuttle between each group and the lawyers are present to give legal advice and to draft the agreement. In each case it depends on what the parties want and what will be most effective and to their ultimate benefit. It is important, however, to be aware of this option and to understand that it is essentially different to court based negotiation.