The
concept of a collaborative divorce is based on the shared belief of all those
participating, that it is in the best interests of the parties and their
families to avoid the often adversarial nature of contentious court proceedings
and to adopt a conflict resolution process that does not rely on a court
imposed resolution. Such an endeavour relies on an atmosphere of openness,
honesty, co-operation, integrity and professionalism, with the ultimate goal
being the future well-being of the parties and their children.
When
parties elect to proceed on a collaborative basis, they enter in to a contract
to commit to resolving all issues without court intervention. The parties agree
to full open and honest disclosure and to engage in informal discussions for
the purposes of resolving these matters, often by way of 4 way meetings with
all parties present. The role of the legal advisor does not change, in that
they are still expected to protect and attend carefully to their respective
clients’ interests, and advise on the applicable law, however, the parties give
good faith undertakings as to how negotiations will be conducted. For example,
all participants agree not to take advantage of inconsistencies, misstatements
of fact or law or other miscalculations. With regards to issues relating to
children, the parties are expected to devise amicable and well-informed
solutions that promote the child’s best interests. As opposed to using the
threat of court, if negotiations stall, the professionals agree to seek out
mutually acceptable solutions that meet the reasonable needs of each party and
any child.
The
collaborative process will not be suitable for everyone and will not always
result in a successful outcome. It will not be appropriate in cases where one
party knowingly withholds or misrepresents information for an unfair advantage,
or if there is secret dissipation of assets, ongoing physical or emotional
abuse, or secret preparation to engage in litigation. If a collaborative
approach is underway and negotiations breakdown, resulting in the requirement
for court intervention, the parties will be obliged to instruct alternative
legal advisors to pursue this process. Alternatively, the parties can at any
point themselves decide to terminate the process, should they wish to do so.
The
origins of this collaborative approach to divorce came about from a desire to
change the often negative impact of marriage breakdown on families and whilst
divorce is never a happy event, it is hoped that with this sort of an approach,
any distress and upset to all those concerned, can be kept to a minimum.
