COLLABORATIVE LAW INTERVIEW – GALWAY BAY FM May 2009
Link to Radio Interview audio
Let me go to Brid Manifold who joins me on line 1 today because Brid and her colleagues including Elizabeth Cazabon have come up with a very interesting way of going about law. It’s called the Galway Collaborative Law Practitioners and Brid joins me on the line today. Brid, good morning to you
Good morning Keith. Thank you very much for having us on.
Okay, talk to me first about what exactly is collaborative law?
Well I suppose firstly Keith it is an alternative method of settling the issues which arise in family breakdown and the process is designed to enable clients to find fair solutions together without the threat of Court proceedings hanging over them and I suppose you could say it’s best suited to couples who really want a fair solution and to minimise the emotional cost to themselves, extended family but most importantly to children out of that relationship.
So it’s a common sense approach but legally done.
Very much so. The process really would consist of the couple and their solicitors sitting around a table together at what we would call four way meetings and all the negotiations and settlements are reached at these meetings with the clients present. Now legal advice is of course built in to the process but all the decisions are made by the couple themselves with the focus being on fair, reasonable and practical agreements so, in a sense, the solicitors and the clients work together as a team considering many many possible solutions to various problems with the objective being that the couple is very proactive in these meetings and we would say to clients if the lawyers are doing all the talking, the process is not working because it is their process and our role is to guide and advise them towards settlement.
It is very unfortunate that people end up in this. I mean once upon a time these people, before the break up, they met, they fell in love, they had a family, life was good and then whatever happened, it just went wrong for them so to do it in such a, I suppose a sensible way and to manage the break-up in such a sensible way is the way forward.
Absolutely and in collaborative law we do recognise the emotional undercurrents that can be present and that can undermine progress and we anticipate this for clients and we do discuss with them that they can be experiencing very very intense negative emotions. They will have bad days, they will have good days, we listen to them on their bad days but it is on their good days when they are able to be forward looking that we can productively work with them and, of course, particularly in the area of children, I think this process is invaluable. Unlike the traditional family law case where direct communication between the parties never happens, isn’t encouraged, negotiations take place only with the lawyers, when agreement cannot be reached a Court imposes a solution which may not be satisfactory to either party or the children, collaborative law more than states the primacy of the children, it actually places them at the heart of the process. It recognises the two parents as the only people who truly know and understand their children and that at the very least, it is wise to include them and involve them in any decisions concerning the children so they would be encouraged to develop parenting plans with the support of therapists. The process is flexible and includes input from other professionals who would also be trained, child psychologists where necessary, so it’s this flexibility and capacity of the process to produce individually tailored agreements, particularly in the area of children that we see as its greatest strength and, indeed, in Galway not only do we have fifty plus in the city and its environs collaboratively trained lawyers, we have a coterie of collaboratively trained therapists and accountants who are available to work in the process and the beauty of working with experts in that process is that they are not hired individually, costs are halved, they are jointly instructed by the clients, they come to the table or they can work separately with the clients, they can come to the table with the lawyers and the parties and brainstorm solutions from a neutral standpoint in the best interests of the whole family.
COLLABORATIVE LAW INTERVIEW – MID WEST RADIO
Link to audio of Interview
Now when a relationship breaks down, sadly the reality is it normally ends up in Court. There are issues to do with property, access to children, maintenance, you name it, all these issues come up, particularly in issues where the husband and wife or the partners simply cannot agree on how best to have as amicable a separation as possible.
Well now there may need to be no need to actually take all of this into the Courthouse because a lot of you may have heard recently a lot of media coverage of what’s called collaborative law. It’s a new method of family law which avoids Court and also allows a couple to sit together at face to face meetings with their solicitors and work out a settlement that’s tailored to their individual family needs. It was pioneered in the US and it has now spread internationally and the good news is that up to one hundred solicitors here in the west have now been trained and the Association for Solicitors have launched this PR drive on collaborative law last week. It’s a fairly revolutionary method in which, by the way, the solicitors also sign a contract not to take the matter to Court but can it work? That’s the question. Well joining me now on line is Brid Manifold who is a solicitor with Manifold Solicitors based on Merchants Road in Galway.
Brid, good morning to you.
Good morning Tommy. Very glad to be talking to you this morning.
Thanks for taking the call. So this effectively says look instead of trawling all of this through the Courts, let’s sit down in a mature, fashionable manner and work it out in the confines of a solicitor’s office.
Exactly. Can I compliment you on your very succinct definition because I don’t think you left anything out there. I think you described it exactly.
Well okay, I’ve got some questions, which I know you will be able to hit on the head fairly fast.
First of all, we’re talking here about couples who are married or indeed just partners who have been living together.
BRID There is no exclusion. All sorts of family breakdown issues are suitable for the process. I mean it’s particularly suited to couples who genuinely want a fair solution and who really want to minimise the emotional cost to themselves and, in particular, to their children and indeed their extended families.
TM In most cases though, people will argue Brid, it won’t work because, you know, in any breakdown of a relationship, there has to be bitter pills to be swallowed by one partner perhaps more than another. People carry monkeys on their shoulder. You know the story yourself.
BRID Well of course, in the collaborative process and remember all solicitors who work in this area do undertake significant mediation skills training because managing the kind of very intense, negative emotions that accompany very naturally a very serious breakdown in your whole family structure is very normal and we need the skills but we are skilled to deal with that conflict so that the couple are enabled at the table to work through the conflict and come to the other end and this is done by very careful planning. These are not loose, casual meetings. The solicitors would very carefully set the agenda for each meeting to ensure that progress was also made. For example, issues would be dealt with separately, perhaps maybe access and children might be agreed at one meeting, then moving on perhaps to maintenance or financial issues and with these small incremental steps, confidence is instilled in the clients and they are encouraged to continue and, of course, legal advice is built in to the process but all of the decisions are made by the couple at the table face to face and they dictate the pace of that and you know, the solicitors are there to guide and advise them towards settlement and to consider many, many possible solutions, which the Court forum doesn’t allow so that, as you put it yourself, individually tailored agreements, particularly in relation to children where it is critical and the Court process cannot possibly kind of order the subtle agreements that a couple themselves, who are the only two people remember who intimately know their children and know what will work for them.
TM In the ideal scenario Brid, where couples do sit down and go through the process of ploughing through literally everything and try and find and reach agreement and when both couples are happy and both solicitors are happy, is there a binding agreement then set up?
BRID Yes, in the usual way what would happen then is you would move on then to develop either a Separation Agreement out of the agreements that have been reached in the four way meetings or you would go to Court and get your divorce ruled in the usual way except that it would be on consent and while in the west here now we are coming in a little bit behind our colleagues in Cork and in Wicklow; these seem to have been the spots where the trail has been blazed but we have had some cases concluded now here in the western circuit and in fact, I had a case myself recently and on the day we got the divorce in Court we congratulated our clients because they were making history in their own small way and later that day I had the happy coincidence of walking into a pub in town for lunch and there was my client and her ex-husband sat at the table having a drink together and I just thought it was a very simple, clear symbol of the value of this way of dealing with family law. When you’ve had experience as a solicitor, as all of us have in the past, when the case is concluded in the Courthouse you are escorting your client out the door of the Court ensuring to avoid their partner and you know, the truth is that for the great majority of clients, they want to move on with their lives, they don’t want to inflict any unnecessary damage, especially on the children but not necessarily on each other but a system that kind of deals with the lowest common denominator, if you like, and presumes that a couple can’t be sat in a room together really doesn’t accommodate the great majority of clients who are capable of working together. Remember these are people who on a daily basis are making childcare arrangements, collecting children, texting each other and this is the value of this process. We allow them to build on that and to kind of re-establish the good communication they may have had or to re-learn it for the first time, that they will take with them into the future long after the lawyers have exited because particularly where there are children, that co-parenting relationship will continue until they are adults.
TM It’s all about, as you say, common denominators but what happens in a scenario where, for example, maybe the couple who have split are still talking because there is the mortgage to be paid or the after childcare service to be paid for and both couples have to throw in a few euro into that. But what happens say if one side of the couple decide they want a divorce and the other side doesn’t. Does that mean that collaborative law wouldn’t really work in a case like that?
BRID Not necessarily. Obviously, cases where couples are at the, let’s say, same stage of what we would refer to as the kind of grief and recovery cycle, it is easier to work with those clients but we recognise that different couples are at different stages at different times and that that can alternate from day to day and it is something that we point out to clients as well, that we will be listening to them on their bad days when they are flooded with those intense, negative emotions but we will be working with them on their good days, the days when they are able to be forward looking and able to be rational and planning in the best interest of the whole family. All cases are potentially suitable for collaborative law. Clearly the ones where they are taking a very mature, reasoned and considered approach, those ones are easier to work with.
TM There is also the cost factor to be looked at here because presumably it is a lot cheaper for solicitors to represent splitting couples as opposed to going into the family Courts?
BRID Absolutely Tommy and in relation to fees the potential for containing legal fees is really enormous in a many number of ways. Firstly, because the couples are very much engaged in the business of the case, they are not excluded from it, all the work is done in these meetings, all the negotiations, all the decisions so the pace of the process is very much controlled and determined by the clients and therefore, they are directly controlling their legal costs. There isn’t some unquantifiable bill waiting for them at the end, they are actually managing it and there is nothing like knowing that you are in control of that and to concentrate minds when you are at meeting or there is an impasse because this is their time and essentially it is their money. Also, in relation to costs there is the aspect that there is no unproductive correspondence entered into by the solicitors. The only correspondence that passes between offices are the minutes of the meeting and a record of the decisions taken at each meeting so these letters that go back and forth, they just don’t simply happen and apart altogether from the cost implications of that, while the spoken word can fade over the years, a letter once it leaves our office assumes a life of its own and we have no control over what happens. Also, in relation to fees and very significantly we haven’t touched on this but the process does allow for input by other trained professionals where relevant, for example, accountants, valuers and in particular therapists where there are particular emotional difficulties or child psychologists where there may be difficulties with the children but unlike in the traditional model, when you bring an expert into a collaborative case, they are jointly instructed by the parties so costs are halved, time is saved because the expert is brought in to brainstorm with the couple for the solution for the overall family and then very particularly in relation to costs, one of the most cost gobbling aspects of traditional family law is the area of financial discovery, which can be very very difficult, very very slow and very very tedious. In collaborative law financial information is exchanged mutually, upfront quite early on and open and full disclosure is expected from both clients. Now also as queries always arise on the complexities of financial arrangements, with two parties and their solicitors and possibly a financial expert sat around a table these queries can be dealt with instantly in the moment so there isn’t this kind of potential for months and months of financial discovery to drag on.
TM From once a case hits the two solicitors and collaborative law kicks in, if things go smoothly can an agreement be thrashed out in literally months?
BRID Oh, or less. I mean if issues are not complex and relations are quite good and the standard of communication is quite high, there is no reason why couples’ meetings can’t totally resolve and you know, maybe the typical average might be four to seven meetings.
TM You mentioned also this idea of letters going from solicitor A to solicitor B and vice versa and all the costs that that can involve doesn’t happen, but surely if there is say one big impasse that is halting the progress of what could be an overall agreement, surely a solicitor could say well look, at our next meeting can we not explore A, B and C.
BRID Exactly and that is the point and that’s the flexibility of the process. The impasse strategies are there because, as I said, the solicitors undertake quite sophisticated mediation skills training to help clients overcome impasse and remember when you talk of an impasse at a meeting, family law is riddled with impasse so if you do a family law case in the normal traditional method there is always an impasse but there isn’t the opportunity with the couple sat around a table to quickly overcome that impasse by, you know, employing the kind of mediation strategies of bringing the clients’ focus back to their mutual common interests. For example, that might be a point in a meeting where you would throw out a reflective question for the clients, for example, you might say to them, you know put yourself forward twenty years and you are asking your son or your daughter how did our divorce affect you, what kind of an answer do you want to hear back? I think they are the moments when suddenly people who can get very locked in to maybe sometimes a small issue but it is one that symbolises the hurt and the anger that has been there but generally speaking couples, particularly parents, actually want to come out the other end.
TM Okay. Finally, you mentioned or I mentioned at the start that about one hundred solicitors in the west of Ireland were now trained in collaborative law. There are a lot more than one hundred solicitors practising though. How can people find out who actually is trained and who isn’t?
BRID Very good and I’m glad you asked that and in fact in Mayo there you have quite a number of trained solicitors and in Castlebar Law Centre, the solicitors in that office are all collaboratively trained lawyers. Now the website for the Association for Collaborative Practitioners is www.acp.ie and will give you a list of all trained members in your locality and we also have the www.collaborativelawgalway.ie and we may need to look at changing that to the west Tommy because we do have members from Mayo and from Clare and we want to accommodate them also.
TM Do you think it’s going to become popular?
BRID I think there is a sea change in the way family law is happening and it’s all word of mouth Tommy. You get one happy client and the ripple effect of that is an entire family and an extended family and I think the demand is increasing and we are going to see a lot more of this way of dealing with it. You know we’ve long since gone past the place where we deal with sensitive family issues in the context of a Courthouse. People are looking for something different, a better way and I think collaborative law is certainly offering that.
TM Can I make just one final point in relation to this being a two-way street. If you have one partner who is very willing to go down the collaborative law route and the other who isn’t then really collaborative law isn’t going to work?
BRID Well just like no relationship works without two people, you know but if you have a client who is interested in the process then we give them all the information and they can either directly discuss it with their partner or we can write to their partner, give them the information and encourage them to select from the list that we enclose of other trained lawyers in their area, go and talk to them and consider it.
Okay. Very good. Brid thank you very much for talking with us.
Thanks very much Tommy.
All the best.