Alternative Dispute Resolution and Collaborative Law
If fighting your case in court is
not for you there are a number of alternative dispute resolution (ADR) options, which have successful and proven track records.
The first alternative is Collaborative
law. In Collaborative Law the parties work together with their solicitors and trained professionals
to resolve disputes without recourse to the law courts. Its chief aim of collaborative law is to find a fair and equitable
agreement for the couple based on reasoned judgment and realistic aspirations. The collaborative law process is
essentially based on round table discussions between the parties with their trained solicitors present. The collaborative
law process proceeds on open disclosure and reasoned discussion. The process proceeds on the basis that there will be
no access to the Court until such time as there is no prospect of agreement. The only downside associated with collaborative
law is that if the case cannot be resolved then both collaborative lawyers are dismissed from the case and new lawyers are
obtained, which means more costs. The point behind this is that the solicitors therefore have an interest in ensuring
that the issues are resolved amicably, in other words all parties are signed up to the collaborative process
and clients must "buy into the process". This is achieved by the parties signing a Participation Agreement.
What is the Participation Agreement?
The participation Agreement agrees that neither of the parties will resort to court to resolve their disputes. Furthermore,
if either party decides to issue court proceedings after signing the participation agreement, then the whole Collaborative
Law process must come to an end and the solicitors who acted for the parties during the Collaborative Law process must remove
themselves (disqualification theory) from the case and the parties must engage new solicitors - non CFL solicitors. The disqualification
theory ensures that all parties including the CFL solicitors have a vested interest in ensuring that the Collaborative Law
process works and that a resolution of the outstanding disputes are agreed. However one exception to the foregoing rule is
when the family law issues have been resolved between the parties and the parties require a court order for example a Divorce
Decree (which can only be granted by the court) then the parties can apply to court for same without infringing on the Participation
How does Collaborative Law process work?
On signing of the Participation Agreement, both parties must reveal the true position of their financial position
by vouched affidavit of means. In many cases, an agreed valuer is appointed to act on behalf of both parties and an agreed
accountant to give advice of how this the marriage issues can be resolved in an accountancy/ tax efficient manner. These professionals
retain a neutral role in the process and are neither act for one or the other parties. Once the true financial position is
clear, a series of meetings are organised to agree the true financial position and to work towards an agreed resolution.
What is the role of the Solicitor in Collaborative Family Law (CFL)?
At all times the CFL practitioner retains the professional role as legal advisor
to their clients are we are bound by the ordinary rules pertaining to professional conduct. The only difference is that we
negotiate collaboratively as opposed to adversely. This process works well for those parties who want to retain an element
of amicability towards each other and especially if there is young children involved in the marriage breakdown.
I am a member of the Collaborative Lawyers Association in Ireland, their
website which gives further information/details on same is www.acp.ie.
The second alternative is Mediation. The mediator
is a neutral third party. Clients work with their own solicitors to obtain legal advice during the course of mediation.
Mediation is a voluntary, non-binding and without prejudice (that is not open to a Court until such time as a final agreement
has been agreed). It also has no formal rules of procedure so the mediator can use the process flexibly to suit the
circumstances of the dispute. The point behind it is not to find fault but to find solutions. There are two different
types of mediation that is a) a mediator working on his own that is a sole mediator or b) co-mediation where you have two
mediators working together. These are usually privately run and they are prepared to travel to a destination that
suits both parties. The cost of same is individual to each mediator.
The first type of Mediation usually involves
both the solicitor's barristers and their clients attending the mediation together to give advice as the mediation process
goes on. The other option of Co-Mediation is a form of two co-mediators working with the clients to bring a resolution;
it is not normal practice for solicitors and barristers to be present at such a process with both parties leaving the mediation
to get their own individual legal advice etc. I am an Accredited Family Mediator with the Friary Law Mediator Training
Another option is to use the State supported
mediation centres namely the Family Support Agency. I can advise
from the outset that there is some delay in being allocated a mediator. In Dublin/Wicklow the delay is in the region
of 11 weeks. The general email address for the Family Support Agency is email@example.com Please note that you are not placed on the waiting list until such time as both of you have contacted them to
confirm that you are interested in the process.
As a solicitor who has spent over 20 years doing family law, I
have come to the conclusion that parties should consider all ADR options before considering the legal route which to put it
mildly is a very blunt instrument in resolving family law cases. Not only is the Court route extremely expensive and
consequently draining on a family's finances but also draining emotionally on both parties not to mention the harm it can
do to the children of the relationship. At all times during the ADR both parties have access to legal advice
and therefore there is no question of one party forcing the other into agreeing to compromise.
I am fully trained and accredited in both
Collaborative Law and Mediation. Which ADR process is best for you depends you and your partner.
If you wish to discuss any of the above please contact me at firstname.lastname@example.org or call 0404 64968.