The politics of separation: 3 types of legal approach demonstrated by roleplay


In June, the Leeds Collaborative Family Law Group made a presentation to local lawyers, judges and various financial professionals. The session's aim was to demonstrate how formal court proceedings, mediation and collaborative law vary in respect of couples planning separation or divorce. Emma Pearmaine, Head of Family Law at Simpson Millar LLP was involved in the presentation and played the part of Solicitor.

Divorce Family Law

Formed in 2005, the Group comprises family lawyers from over 20 Leeds legal firms, IFA practices, barristers, life-coaches and forensic accountants. Its common aim is to promote the collaborative law process and encourage good practice.

In recent years there have been many changes in family law. Traditionally, separated couples have instructed lawyers to negotiate settlements on their behalf, largely through correspondence.

However, this approach can be confrontational, often leading to contested court proceedings which are costly, time-consuming and divisive. Communications break down as separatees fail directly to resolve their differences, with damaging consequences.

Recent statistics show that almost 50% of UK marriages will end in separation. But for anyone involved, the real cost of divorce or relationship breakdown is personal and emotional trauma. Lasting scars are left not just on the couple, but on their children and extended family.

Such damage is likely to be exacerbated by the litigation process, as the Leeds Group set out to prove. The presentation, in the form of 3 'mini-dramas' illustrating the differences between court process, mediation and collaborative law, focused on a fictitious family, Clare and Philip George and their 3 children.

The 'couple', whose estrangement was partially due to Philip's infidelity, were at loggerheads over whether the former family home should be sold and, if so, when. Clare was vigorously opposed to a sale, while Philip was in favour.

Act 1: the 'Court' tableau

The tone was tense and confrontational, with the couple's respective lawyers spending some 2 hours each in cross-examination and with interventions by a financial advisor. Soured by emotion and ill-temper, the playlet amply demonstrated the distress which can be provoked by such proceedings.

The judge expressed her awareness of the emotional and financial burdens of the case on both parties, considering in particular the needs of the couple's children in light of Section 25 of the Matrimonial Causes Act.

"Mr George has said he needs £270,000 to buy a property, and can borrow £150,000 on mortgage," the judge said in summing up. "I suspect that his parents will assist him. Mrs George does not want to sell the house immediately but her wish to stay there for 2 years is excessive. I cannot meet the wishes of both parties and have to somehow find a middle way. I have decided that the house will be sold but not immediately."

The judge instructed Clare to pay Philip £75,000 from her savings. Ordering that the house be sold in 1 year, she added that the net proceeds of sale would be divided, with Clare receiving 62.5% and Philip 37.5%.

Act 2: Mediation

This showed how the Georges' case might be addressed in a room expressly set up to promote a non-confrontational and relaxed atmosphere.

In mediation there can be as many or as few meetings as each party needs. Sessions are facilitated by a single mediator or co-mediators, whose task is to remain impartial and encourage constructive dialogue, ensuring each party can make its case without rancour.

Clare and Philip finalised the last elements of their settlement, agreeing the division of equity in the family home, household contents and the amount of maintenance Philip should pay. The couple agreed to return for 1 more meeting to review the children's arrangements, after which the mediator wrote up the proposals for settlement in a non-binding Memorandum of Understanding.

Clare and Philip took this to their respective solicitors, who advised the couple on the proposals and transferred them into a legally-binding Court Order within the divorce proceedings.

Act 3: Collaborative Law

Collaborative law is increasingly popular. Although each party has a lawyer, both sign a participation agreement committing them and their advisors to working together towards a mutually-agreeable settlement.

Negotiations are first made by telephone calls, then by 4-way round-table meetings. Much is done to help the couple feel calm and relaxed; while lawyers are present to provide any legal advice that might be required, the aim is always one of constructive dialogue.

By the end of a session in which the hostility of the courtroom is largely absent, it is hoped that both parties will continue to communicate for the future.

Despite a few tense moments, the collaborative lawyers were able to re-focus Clare and Philip on the main issues, providing legal advice during the meeting and correcting any misunderstandings. An independent financial advisor was present, with Clare’s accountant invited to attend a follow-up session.

Once agreement was reached on all issues, the lawyers converted the agreement into a formal Court Order, which was then sent to court for judicial approval.

In summary…

In mediation, the mediator provides not legal advice but legal information, acting completely independently and impartially throughout. If Clare and Philip want to use this information with a view to obtaining legal advice within the mediation process, they have to consult with their solicitors between the mediation sessions.

The mediator can provide a copy of the minutes of the sessions to the solicitors, who can then invite their clients to discuss the issues. Solicitors are not normally present during the mediation sessions.

Since in collaborative law lawyers are present throughout to conduct the process, they can provide full legal advice to their respective clients at any time.

One other difference between mediation and collaborative processes is that any experts needed by a couple are usually consulted away from the mediation sessions.

The mediator’s role is to provide Clare and Philip with information about where they can consult with other experts, who do not typically attend the meetings. In collaborative law, such experts can be invited to attend sessions and participate in the discussions if the parties think it helpful.

An important difference between the 3 approaches lies in the legal costs for which Clare and Philip would be liable.

A court hearing could cost the couple each as much as £30,000 plus VAT. In collaborative law fees can be between £5-10,000 between parties, depending on the complexities of the case and whether additional consultants' help is required. In mediation the average costs paid to the mediator are about £1,500, although the parties still have to pay their own lawyers' fees.

More generally, the playlets showed that mediation and collaborative law allow a far more relaxed, less hostile forum than a courtroom for separating couples to air and resolve their differences.

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