The painful silence
Separation and divorce are often times in life when emotions are raw, old certainties have painfully evaporated and trust in an ex-partner might have turned to dust. It is the one time in a person’s life when clarity of communication between them and their ‘ex’ could start to build a stable foundation for future relations, but when usually effective communication can be at its most difficult to achieve; indeed poor communication is a very common contributory factor in relationship break-ups.
Family mediation and collaborative law both offer frameworks within which to establish the much needed communication required to reach a fair, balanced agreement in a mutually respectful way, without the hugely expensive recourse to going to court. Might the parties be ready for either of these approaches? How can they be sure?
Might it work?
Since April 2011 ex-partners considering settling their separation agreement in court have been required to separately attend a meeting with a professional mediator to discover if they are both in a space that would allow them to benefit from alternatives to the court option. In circumstances where one partner has abused the other or the children, physically, sexually, psychologically or economically the family mediation and collaborative law options are immediately excluded and the divorce settlement would have to be handled in court. In other circumstances there might be real hope for either of these exceptionally successful approaches.
A principled approach
Essentially both parties have to be willing to accept mediation or collaborative law and feel that one or other is a suitable method for them. Both are voluntary processes. In mediation there is no blame apportioned and the mediator does not undertake to advise or take a partisan position; he or she is neutral communication facilitator. Such a dynamic might of course prove to be less than optimally effective if one of the parties is clearly a much more dominant personality than the other.
In collaborative law, a process which can prove to be as expensive as taking the matter to court, each party is accompanied in the meetings by their collaboratively trained solicitor and so the issue of the dominant personality gaining some advantage is usually neutralised. Over and above the initial goodwill necessary to initiate the process, the major incentives to make collaborative law work is that should it fail, the parties are forced to find other solicitors to represent them and disclosures made during the process cannot be subsequently presented in court. There is also the huge benefit of avoiding a confrontational arena which offers little opportunity for direct involvement by the divorcing couple and every prospect of stripping one or both of the parties of their emotional energy, money and dignity.
Not for everyone
Of course in some cases where heads remain hot and hearts remain broken, the desire of one party to impoverish and psychologically distress the other will render both family mediation and collaborative law unsuitable options. A high level of openness and honesty are required to make either approach work – hidden agendas will usually bring about the failure of either option. Thus we see quite clearly that whilst family mediation and collaborative law will not be suitable for everyone, they remain bright beacons of hope for the majority.
Call our experts for further advice on family mediation or collaborative law
Our expert family law team will quickly be able to determine whether or not your case is suitable for family mediation or collaborative law. Call us today
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