Recently I came across an article in Forbes magazine, talking about the four tips for a more peaceful divorce.
In that article, a collaborative lawyer, Juliet Laycoe, was interviewed and discussed the various different ways that you can minimise the fallout and hurt from your divorce, and choose an option that makes your split easier on you and your family.
The particular factors that Juliet suggested were as follows:
- Ensure that divorce is the best option;
- maintain mutual respect;
- share a common goal or vision;
- consider all divorce process options.
You can read more about the first three on the post in Forbes, but it is the fourth tip which interests me the most.
Untying the Knot is founded on the principles of collaborative law, where everyone involved, including your family lawyers, agrees to use the Collaborative Divorce process. We sign a participation agreement (contract) pledging to work towards a resolution of your matter by agreement rather than by litigation.
Recently, I explained to a client one of the benefits of a collaborative divorce as follows:
When we’re in the collaborative process, the professionals work with you to ensure that disagreements don’t become arguments, arguments don’t become disputes, and disputes don’t become conflict.
It’s really important to avoid conflict during a divorce because there is considerable research showing that it is conflict post-separation or divorce that harms children, not divorce itself.
It is for this reason that I’m not keen to refer to collaborative law or even mediation as “alternative dispute resolution” because, for starters, I don’t believe that it should be treated as alternative (although the term seems to derive from being an alternative to court), but it should in fact be the first choice.
Second, I don’t believe that we should consider ourselves to be resolving disputes.
Many intelligent, articulate, emotionally intelligent and thoughtful people are unable to reach agreement about their family law matters after separation. This isn’t surprising when reaching agreement requires a high level of communication.
Frequently, one of the things that breaks down during the course of a relationship breakdown, or in some cases even causes the divorce, is a lack of communication.
I was discussing with another client how communication can break down in various ways, and often it can be that one party is simply not communicating with the other in the way that they need to hear it.
For example, you might communicate something to your spouse, which to you is simply matter of fact and stating a clear proposition.
Your spouse, reading it or hearing it, might interpret that as a demand. You haven’t intended it as a demand, but that’s the way it’s come across.
It’s for that reason that I discourage clients from using text messages to communicate with each other because if there’s no tone in an email, there certainly isn’t one in a text message, and they are too easy to become rapid fire knee-jerk reaction responses, which unfortunately can’t be taken back. An email has the advantage of being able to be prepared in draft and left to be reviewed later, before sending.
But back to collaborative divorce.
One of the points made in Juliet Laycoe’s article is that,
“If mediation doesn’t achieve a resolution, parties can consider litigation as a next step.”
Herein lies the problem with traditional mediation versus mediation by Untying the Knot.
In other mediation processes conducted by family mediators in Sydney, Brisbane or Melbourne, if you can’t reach a resolution, then going to the Family Court or the Federal Circuit Court of Australia to get a family law order is really a last resort.
Often it’s said, “If you can’t sort it out at mediation, then that was your best shot, so it looks like you’ll have to go to court.”
However, even matters that have been to mediation in the early stages frequently settle, even after court proceedings have been filed. Of the cases that are filed in the family law courts each year, only about 3% of those ever go to a trial. That’s 97% of couples sorting out their family law issues without a judge deciding for them. That’s an enormous proportion. It seems like there’s been some missed opportunities along the way to resolve the matter if it’s got all the way to court proceedings, and then perhaps years spent in the court system, only to settle at the last minute.
Where Untying the Knot’s mediation process is different from all others is that it is founded on the principles of collaborative law. Not only that, we bring in the principles of the collaborative divorce process, including provisions that mirror a collaborative law participation agreement, where the parties and lawyers commit to not going to court.
Why is this important? Well, if you want to reach a resolution, and you want to do it for a fixed fee, why would you want the option to be there of going to court?
You want to get a family law agreement for a fixed price, and you want everyone at the table to be working towards that same goal.
If there’s no plan B for your lawyers to consider litigation as a next step, then they will be working hard to help you reach agreement because that is their job and their only job.
They are not there as potential litigators, they are there as problem solvers.
So when you’re looking at engaging a family law mediator, whether you are in Brisbane, Sydney, Melbourne, or in rural or remote Australia and need video or online mediation, consider whether or not the mediation service you are being offered offers the benefits that Untying the Knot’s family law mediation process offers, or whether you will be faced with a situation of, “If mediation doesn’t achieve a resolution, parties can consider litigation as a next step.”
Jennifer Hetherington is an award-winning Collaborative Lawyer, Nationally Accredited Mediator and Registered Family Dispute Resolution Practitioner, and a member of the Untying the Knot panel of Sydney, Melbourne and Brisbane Mediators. She also conducts online and video family mediation across Australia.