Divorce is an Emotional Crisis with Legal Consequences
“Alternative dispute resolution in family law cases is increasing, slowly replacing – where appropriate – traditional court-based practice.” ~ Marguerite Picard
I made a decision five years ago to abandon traditional legal practice. What I have learned since then, in my collaborative practice, is that there are many more couples who can work effectively in Alternative Dispute Resolution or ADR than we can possibly know when working in litigation and adversarial negotiation.
The following thoughts are a brief summary of an article for people looking for an alternative to a full blown legal stoush with their spouse. If you want a copy of the article just send us an email with the request through my contact page.
Five years working closely with my client and with “the other” spouse has taught me to see that the “cat got skinned in many different ways”. I have realised first hand that my client’s perception of their partner is their perception only.
Just like in the cartoon above I see that there is a lot that has gone on in a relationship and not all is as it seems. Separation and divorce occur with a high mix of emotions and I now see that there is more need to understand relationship dynamics and human behaviour, the role these play in presenting for litigation and adversarial negotiation.
My experience has shown that ADR provides the opportunity to look more closely at what lies beneath the presenting issues, to help people get to agreement rather than being stuck on arguments about “facts” and history. Similar to myself most lawyers today recognise that ADR has a place in family law.
What have I to say about ADR after 5 years?
- ADR is more cost effective than lawyers negotiating at arm’s length.
- The point of facilitation on the value the “non- legal” discussions are in moving to agreement is certainly the clients.
- The facilitator can reduce anxiety and shift points of view towards a long term solution.
- Provides consumers of the legal profession with a choice.
- ADR definitely requires a lawyer to think and act in a different manner.
- Psychologists and financial planners are part of the team with a lawyer providing input for the clients.
The following video provides a good overview of what is happening the world over in regard to ADR and the shifting viewpoint of the legal profession.
My article in the June 2014 edition of the Law Institute of Victoria’s Journal (pp 50-55) was to stimulate discussion amongst the profession, as I believe the community is moving away from litigation and adversarial negotiation in legal disputes. This view is best summarised by Warren Burger, the former Chief Justice of the US Supreme Court, who said, “We must move away from total reliance on the adversary contest for resolving all disputes. For some disputes, tri- als will be the only means, but many trials by the adversary contest must go by the way of the ancient trial by battle and blood. Our sys- tem is too costly, too painful, too destructive, too inefficient for a truly civilised people.”(1)
It is well recognised that most family divorce lawyers settle their cases before a final hearing or without issuing Court proceedings. The practises of these lawyers are different from the practises of “interest based” ADR procedures. My article was about a practice that is not conducted “on the steps of the law court” neither is court considered as the first default. My current practice is about working with different skill set. Firstly considering all the interests and rights of the clients definitely leads to the possibility of a settlement.
“The point of ADR negotiation is for clients to take charge of the decision making with whatever information and advice they need.” ~ Marguerite Picard, Law Institute Journal June 2014
ADR is a recognised process, just like mediation and collaboration. In ADR the parties vigorously discuss what is important to them within the ADR process and what their fundamental goals are. ADR does not restrict the parties to matters that line up with the sections of the Family Law Act; what the parties cover is what matters to them and getting to their interests. These ADR agreements reached are formalised in Consent Orders or Financial Agreements as with any negotiation, however the route taken to get is one in which the clients decided upon and what needed to be dealt with.
During ADR negotiation, clients have permission to discuss and argue about whatever they need to, to come to lasting agreements.
Alternative dispute resolution in divorce is not always appropriate. ADR is not appropriate if violence and power imbalances that cannot be addressed. There is also the need for the exercise of judicial power and the processes of the court to protect children, assets or a need for urgent support or limiting mental health issues.
In Victoria today there are alternative dispute resolution only based legal practices, where lawyers are using entirely collaboration, mediation, co-operative and interest-based negotiations methods. (3)
(1) Chief Justice Warren E Burger, US Supreme Court, Annual address to the America Bar Association winter convention, Las Vegas (12 February 1984).
(2) “The Lawyer as Peacemaker” 34 Bar notes 8, 9 (1983) North Carolina Supreme Court Chief Justice James G Exum, Jr.
(3) Marguerite Picard at Marguerite Picard Family Lawyer, Mike Wells at Better Separations, Catherine Gale at Resolve Conflict and Jacqueline Conquest at Walls Bridges.
If you would like to read more of what I have written you might like to read these posts.
by Marguerite Picard, Family Divorce Lawyer, Melbourne, VIC