Collaborative law involves a major shift in how lawyers act for their clients, writes Carol Coulter
THE TERM "a good divorce" may sound strange to many ears, but it is the aim of those engaged in a new type of law, knows as collaborative law, designed particularly for family disputes.
It began in the US when a lawyer called Stu Webb became disillusioned with the adversarial system, and thought there must be a better way of resolving disputes. He began to practise what he called collaborative law, where the lawyers and clients agreed to focus on finding an outcome that would meet the ongoing needs of the family in its new, fractured form.
He co-authored a book about it, and it took off as a movement, initially in the US, but there are now collaborative law practitioners in Australia, Canada, Britain and other European countries, as well as Ireland, which hosted the second European conference of the movement over the weekend.
Another pioneer of the movement was Pauline Tesler, who spoke along with Mr Webb at the conference. She said traditional law was based on an 18th-century view of the individual as an isolated economic unit with legal rights.
"This does not fit with what we now know from natural science and social science about human beings," she said. "We know that we are hardwired in our DNA to be social beings. We cannot survive infancy without deep bonds of intimacy with other human beings in a family.
"In a divorce, all those connections get shattered because that is what happens in the shadow of the old system that was designed for criminals, tort-feasers and contract-breakers."
Collaborative law is designed to meet these human needs, she said. It involves helping people to divorce in a way that honours those human connections, in co-operation with colleagues in other disciplines such as mental health and finance.
This means collaborative lawyers work with others to help their clients through the process. This involves a team that includes counsellors for the adults, a child specialist to talk to and represent the wishes of the child, and a finance specialist who can advise the parties on how to deal with the financial consequences of their separation and maximise their resources in a situation where they now have two households.
The position of the child specialist is central to this. Jennifer Jackson is a descendant of Parnell, and introduced herself as therefore the descendant of one of the most famous divorces in history. She is also the founder of Kids' Turn, an organisation that began 20 years ago in California to help families through separation.
"All the research shows that children want their parents to hear them. But they don't want to choose," she said. "Children need to be kept in the loop, but not be in the middle. They don't want the final say."
Mental health professionals are also on hand to help the parties deal with the emotional fall-out of the break-up of their marriage.
Lorraine Lopich, lawyer and mediator from Sydney, told The Irish Times that clients whose marriages are breaking up often look to their lawyers for counselling and emotional support, but they are not qualified to provide it. In the long run, it is more cost-effective if someone who is qualified can help a person to deal rationally and constructively with the process of divorcing.
Patrician Mallon is the president of the Association of Collaborative Practitioners in Ireland. She acknowledged that collaborative law was not necessarily a cheaper option than litigation, but she stressed it was a better option because it enabled people to come to an agreement that they controlled, and was more cost-effective.
She also pointed out it eliminated the legal correspondence and interim applications to the courts that pushed costs up in traditional litigation. "Most cases wrap up in four to seven or eight sessions, each of about two hours," she said. There are now about 600 lawyers in Ireland trained in this method of resolving family law disputes.