Author: rsirivella

Collaborative Practice: One Stop Solution Finder for the divorcing Couple!

Collaborative practice (https://aifs.gov.au/publications/family-matters/issue-85/what-thing-called-collaborative-law)  is more of an advisory method of alternative dispute resolution in divorce. It is more professional, focused and result driven approach to the separation process.

Various domain experts are roped into a collaborative session. Such as family lawyers for legal advice, psychologists for relationship counselling and/or child counselling, financial experts for property valuation etc.

These domain experts are trained professionals in collaborative law and provide their inputs on the matters that are discussed by the separating couples. The expert advice assists the couple in arriving at a reasonable arrangement of child care, finances, properties, maintenance etc. This empowering practice creates win-win solutions for both the partners and they are more than happy to stick to the plans, they have drawn.

How Collaborative Practice works:

 

To start with, there is an agreement that must be signed by the collaborating team and the partners, stating that they agree to resolve their family dispute through collaborative approach and consent to out of court settlements.

If the arrangements recommended by the collaborative team is not satisfactory to the partners, they can file for court proceedings. In such cases, the collaborative lawyers do not represent the partners in the court. Instead, separate family lawyers must be hired to represent their divorce case in the court.

Most of the time, the solutions recommended by the collaborative team find resonance by the couples. In unlikely cases, the couple goes ahead and litigate in the court.

 

 

Collaborative Practice And its Formats:

 

Collaborative practice is necessarily conducted under a trained family lawyer in collaborative law. The Collaborative lawyer shifts and navigates the collaboration process.

The collaborative practice can be conducted in 3 formats, depending on the needs and characteristics of the clients:

  1. Neutral Expert

Neutral experts are appointed with the consensus of both the partners and their collaborative lawyers. The expert or experts can be from any domain such child care, counselling, finance etc., depending on the demand of the situation.

The neutral expert or experts, advice the couple impartially after listening to their concerns and demands.

  1. Team

In this format, the domain experts (as mentioned earlier in the post) drive the collaborative process and advise the suitable solutions to the clients’ needs.

After the clients’ consent, the collaborative lawyers take up the legal process forward by preparing the legal documents and getting consent orders from the court.

  1. Collaborative Lawyer

The collaborative lawyers from both the sides, drive the negotiation process and suggest solutions.

Advantages of Collaborative Divorce:

With all the above information, the advantages, the collaborative divorce brings to the separating families is evident.

Unanimous Solutions: The arrangements agreed upon are consented by all the concerned parties. This makes getting further legal orders and enforcement easy.

Family Centric: The negotiations are children-centric and ensure co-parenting. So far that is the best and most applauded results of collaborative divorce settlements.

Open Communication: The communication channels throughout the process are kept open, cordial and respectful. This also ensures, both the partners are honestly sharing all the information required to work out fair solutions.

Stress-free: When the couples are fretting over the litigation in the court and likely orders, they are under constant stress and this works against them in gaining common ground for achieving positive arrangements.

Empowered Results: The clients are empowered to discuss their concerns freely and actively participate in negotiations.

Fair Settlement: Because of all the above benefits, the clients can have a just and equitable settlement. The entire team of collaborative practitioners and clients work towards achieving a common goal, instead of working against each other.

However, severe cases of drug addiction, behavioural abnormality or domestic violence cases must be immediately referred to legal actions. Collaborative practice may not be helpful in such cases.

Make the most of such services to resolve your marital problems instead of knocking on the doors of the court at the slightest signal of relationship breakdown. In many cases, I have known, the divorce is called off and the couple starts seeing things from their partner’s perspective after series of dispute resolution sessions!

Wish you luck!

How can Mediation help warring partners to come around?

In this post, I am trying to provide information like, what is mediation, how mediation works, what is the set up for mediating sessions, who can participate etc.…

 

Mediation: A setup

Mediation (https://aifs.gov.au/publications/family-matters/issue-28/mediating-divorce-alternative-litigation ) is a facilitative alternative dispute resolution means. The mediator’s job is it facilitates the discussion between the divorcing partners. A mediator is a neutral person, who navigates the discussion towards fruitful results.

The mediator cannot pass judgements or influence the parties’ decisions.

The mediation can take in three formats:

  1. Mediation is done by a trained family lawyer
  2. Mediation is done by a Mediation Practitioner
  3. Mediation is done by a community-based mediation centre

Mediation Done by a Mediation Practitioner

 

This format is also called as Family Dispute Resolution and is recommended by the family courts of Australia.

A certified mediation practitioner needs to conduct mediation sessions for divorcing couple and provide a written document stating the mediation session has been taken by both the partners. This document has to be submitted to the family court along with divorce filing documents.

Mediation: How it is done?

 

Mediator shares the information with both the partners in each other’s possession of properties, the disclosure of full financial details, current market valuations or any other vital information that aids in the decision-making process of the couple.

The mediator must ensure that the settlement is done based on fair ground and both the parties must share all the details.

The couple can freely discuss the issues concerning them either one-on-one with the mediator or if they are okay, along with the partner. Whatever issue or facts come up during the mediation sessions are kept confidential. Disclosure of the same attracts serious penalty from the court.

However, if the issues are of serious nature and call for legal intervention, they are permissible to be brought under court’s consideration.

The mediator prepares a Settlement Report at the end of the session, comprising the agreed arrangements between the partners. The report must be signed by both the parties and the mediator. Please note that this report is not legally binding and the couple can still opt to approach the court for settlement orders.

Mediation: How divorcing couple can benefit?

 

Mediation is the best way to settle your separation or divorce issues out of the court.

How it affects your personal life, financial resources and time? Check out the pros of mediation:

Privacy: The mediation is done one-to-one or with both the partners, depending on the partners’ comfort level. This ensures that the individuals can share their privileged information with the mediator.

Assured Confidentiality: It is mandatory to keep the information shared during mediation sessions confidential unless the information bears highly severe consequences.

Cost: Mediation costs much less than other alternative dispute resolution methods or going to court.

Time: Mediation can help the couple to arrive at the solutions faster than waiting for months for court hearings and orders.

Impact on personal life: Since both, the couple try understanding each other’s point of view while working out the separation arrangements, their relationship is saved of bitterness, anger and guilt towards the other partner. This understanding helps them move ahead in life and provide a better future for their children by co-parenting.

Certain Outcome: As the settlement of finances and childcare or parenting arrangements are done by through discussion, both the partners are aware and in control of the outcome of the mediation process.

If the court is applied to decide the arrangements for the family, the court orders are uncertain and beyond one’s control, causing more stress to the couple.

The Attorney-General’s Department of Australia has permitted 11 organisations, that are mainly marriage counselling organisations, to practice mediation legally.

Mediation services can be considered for all the issues relating the family separation. However, relationships that are plagued by domestic violence are not advised to undergo mediation. Instead, it is recommended to seek immediate legal protection and intervention orders from the court.

 

Why is Alternative Dispute Resolution in Divorce important?

As I said in my introduction to my blog site, ADR (alternative dispute resolution) is less known and thus lesser explored resolution option.

Alternative Dispute Resolution Servicesare basically sitting down-and-talk sessions with all the concerned parties in adivorce, especially couples in marriage or partners in ade facto relationship.

Separation and divorce are life altering events. If handled insensibly, it can scar the further life in terms of finances, emotions and thestill more disturbing situation are if children are impacted by this event in the family.This is where it is becomingeven more important to resolve the issues between the adults in the family sensibly, and peacefully so that the family’s normal living is not much affected.

It saves your children from distress that their parents are separating with bitterness and that is going to affect them severely.

Alternative dispute resolution helps the divorcing couple move on with their lives with better planning and peace of mind. Some of the means of alternative dispute resolution are given below:

Mediation:

 

In mediation, the facilitator is called mediator. The mediator stays neutral throughout the session and helps in deciding the priority issues of the couple. Once the issues are decided, the partners work out the settlement themselves. Since the arrangements are done voluntarily by the couple themselves, it is more likely that they will stick to it. Such smooth arrangements ensure thecordial relationship between the partners.

The mediator interferes only when he/she feels the discussion is going nowhere and the couple is not negotiating sensibly.

 

 

Collaborative resolution:

 

Collaborative law is a focussed approach to resolve family disputes with professional insights and help. Unlike mediation, the collaborative resolution is more structured and solution centred.

The professionals like couple counsellors, child psychologists, property valuation experts, legal advisors form a team to advise and work out a practical solution for divorce settlements and child care arrangements.

The alternative dispute resolution is not an order from the court though. You need to get Consent Orders from the court to carry out the arrangements you have made with your partner either through mediation or collaborative way. Consent Orders from the court ensures the arrangement is fair and legally binding on both the parties.

Once a plan is in place, the transition can be easy to both the individuals.

 

Arbitration:

 

Arbitration is little more judgemental compared to the other two above mentioned modes of alternative dispute resolution. In arbitration, the partners’ side of the case is presented to the experts and these experts decide the arrangements be made between the partners.

 

 

 

Legal redressal can be initiated if none of the alternative dispute resolution options brings satisfactory results.

The National Alternative Dispute Resolution Advisory Council of Australia, advises the Attorney General of Australia on developing policies on alternative dispute resolution services.

The alternative dispute resolution services can be utilised for any family dispute such as child care arrangements, parenting planning, financial settlements, spousal maintenance, family residence sharing, thesplitting of superannuation and any other concern of the partners.

The alternative dispute resolution options are recommended for exceedingly disagreeing partners. Though commonly it is believed that ADR does not help such couple and they always end up straining their relationship more, many seasoned mediators and collaborative lawyers of Australia have completely opposite story to tell. They believe that ADR helps such highly incompatible couple to think about their relationship calmly and objectively. So that real solutions can be figured out for real problems.