Friday 1 September 2006

Times article on COLLABORATIVE LAW

We're splitting up, but need it be expensive?
By District Judge Stephen Gerlis
The McCartney split throws into focus the search for an alternative to costly family financial disputes
Stephen Gerlis is a district judge at Barnet County Court

So the battle lines are drawn. Sir Paul McCartney and Lady McCartney have both instructed high-flying and highly-paid divorce lawyers and if nothing is done to stop a descent into all-out war it may well prove to be an expensive exercise for both parties, no matter how well-heeled they are. The signs are not good, given the preliminary skirmishes that have taken place in the pages of the tabloid press.

The McCartney's marriage problems have surfaced at the same time as other high-profile and highly publicised cases, the latest being that of Beverley Charman, who recovered some £48 million to the disgust of her husband, an insurance magnate. Mr Charman threatens to appeal the decision, no doubt running up more lawyers’ fees in the process.

These seemingly intransigent disputes are repeated daily in family courts up and down the country and are not limited to large money cases. I frequently tell the parties, "Costs in financial disputes are like a taxi-meter that revolves faster and faster the longer the dispute goes on and the closer to a trial. Your solicitor will get paid, your barrister will get paid, but it will come out of your pockets." Recent changes in the family costs rules means that it will only be in exceptional cases that one party will be ordered to pay the other party’s costs.

Is there any way of preventing matters from getting out of hand and keeping costs to a minimum? The court itself has a built-in mechanism for attempting to resolve such matters without the need for a trial. Known as "financial dispute resolution" hearings, they are conducted by a judge who is there to assist the parties in trying to reach an acceptable compromise. However, the hearings are the last step before a trial, which means they inevitably take place at a time when the parties may already be too far entrenched and determined on a downward slope to uncertain and costly litigation.

But a new approach is beginning to produce interesting results and may show the way forward to a quicker, cheaper, more enduring solution.

Many family solicitors have adopted a system known as "collaborative practice". Collaborative practice requires transparency, respect and a focus on constructive outcomes in the participation agreement that the lawyers and clients sign at the outset. For lawyers to become part of the process, they have to take part in an intensive initial two-day training. Each party to a family property dispute instructs a lawyer who is suitably qualified for this new procedure. All of the progress is generally achieved at meetings attended by both clients and their solicitors. While the process continues, the client must call a halt to court proceedings.

Significantly, if the negotiations break down then the lawyers are not permitted to continue to act for the clients. This operates as an encouragement for the parties to reach an amicable outcome rather than rush to court. Its stated aim is to "seek to put the client’s aspirations and values at the centre of the process and the outcome that it provides". The lawyer’s role is not adversarial, as it would be if the matter went to court; it is, rather, supportive and advisory. What the court might or might not do is not the issue – reaching a satisfactory settlement is the name of the game.

Collaborative practice has apparently been spectacularly successful with the members reporting virtually complete success. Consent orders sent to court for endorsement contain a standard paragraph confirming that consent has been reached as a result of collaborative practice.
Perhaps marriage breakdown needs a sort of United Nations approach to encourage a ceasefire between the parties. It may be that collaborative practice provides that service. It is certainly worth a try.
Click here at access article on Times site

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