An End To The Divorce Wars
“War is what happens when language fails” Margaret Atwood.
At Bright Side Family Law and Mediation we have built our business around the idea of not declaring a divorce war like the one portrayed by Kathleen Turner and Michael Douglas in the Danny DeVito directed The War of the Roses.
We have always believed that two people who don’t want to be together anymore don’t need to spend two years and most of their money continuing to fight over everything they built together. In short there is another way, and separating couples do not need to declare a divorce war.
So we were very interested to come across an article in The Times of London referring to lawyers in the UK who are also moving away from the old model of divorce war and towards a concept of negotiation to solve separation issues between couples.
It is an interesting read so we have included it for you.
Upstarts aim to end the divorce wars
Firms are offering new single-lawyer services to separating couples
Thursday April 30 2020, 12.01am BST, The Times
Some solicitors want to move past the acrimony conveyed by Michael Douglas and Kathleen Turner in The War of the Roses ALAMY
Think divorce and it is difficult not to recall the late-80s Hollywood classic The War of the Roses and vivid scenes of Michael Douglas and Kathleen Turner knocking lumps out of each other. Or, more recently, the sight of Baroness Shackleton of Belgravia — the divorce specialist solicitor known as the Steel Magnolia — emerging from the Family Court with her client, Sir Paul McCartney, her hair drenched after the former Beatle’s ex-wife tipped a pitcher of water over her head
Divorce is riven with high emotion and often irrational behaviour. It is by its nature combative, but lawyers are increasingly arguing that it does not have to be that way. For years the Solicitors Family Law Association — as the lobbying group used to be known before marketing gurus rebranded it as Resolution — has pressed for a “constructive approach” to divorce. That meant that the lawyers on opposing sides would encourage their clients to play nicely with each other.
More recently, some specialists have gone farther. In February Withers, a City firm, launched a “separation model” that involves its lawyers acting for both parties. Its move followed the launch of the Divorce Surgery, a firm regulated by the Bar Standards Board that markets a service described as “one couple, one lawyer”.
That slogan immediately sounds alarm bells over conflicts of interest. If the divorce process can lead to one party tipping water over a lawyer’s head, how can a couple possibly share advisers? The Withers model involves “a neutral facilitator/mediator” from the firm, who “guides the couple through the new process, but does not provide legal advice”. A separate set of Withers lawyers offers “legal input on distinct issues”, says the firm, emphasising that those lawyers work “within strictly defined roles”.
In the Divorce Surgery’s model the firm provides “one specialist family law barrister to advise the couple together as to what a court would do in the particular circumstances”.
The advice is given on a privileged basis with the aim being “to give couples the injection of legal advice they need to use as a tool for negotiating an early settlement, thus reducing acrimony, cost and time”.
Claire Blakemore, a partner at Withers, acknowledges that the interests of divorcing couples “will almost never be perfectly aligned to the point where there is no chance of disagreement”.
However, Blakemore claims that the traditional approach of each spouse appointing separate legal teams means that from the start “they are pulled in opposite directions . . . simply as a result of the adversarial process”.
Blakemore says that her firm’s model “gets rid of that antagonism”. She says that the combination of the mediator working with the specialist legal advisers results in the splitting couple’s positions being “aligned to focus on achieving a fair outcome, rather than inadvertently pulling a couple in opposite directions”.
Harry Gates, of the Divorce Surgery, adds that there is a welcome financial benefit to cutting down on the number of lawyers involved in divorce. “The costs of two-sided litigation have risen to the point where accessing the necessary expertise — and therefore access to justice itself — is simply out of reach for many families,” Gates says, “meaning one or both of them must self-represent, with additional strain on the already overburdened Family Court as the inevitable result”.
However, other specialists have their doubts. Mark Harper, a partner at Hughes Fowler Carruthers, maintains the view that “one lawyer meeting with a separating couple is fraught with significant risks of conflicts of interest”.
Harper warns that one party “may be being browbeaten into a so-called consensual approach. An experienced solicitor can guide a client through the different non-litigation options — counselling and therapy, mediation or arbitration — without risking a conflict of interest”.
However, Jo Edwards, a partner at Forsters and a prominent member of Resolution, is more conciliatory. “Those of us offering one lawyer/two client services are all savvy enough to be able to identify the cases where independent legal advice is a must,” she says.
She adds that judges looking at proposed financial orders drafted without independent legal advice “will be very careful to ensure that the couple know what they are signing up to and, crucially, that it is fair”.
Blakemore and Gates agree that their streamlined processes will not be right for all divorcing couples.
“There will be some cases that are not suitable to this model,” says Blakemore, acknowledging that for it to work “both parties need to embrace it”.
While Gates agrees that “there will always be a hard core of cases” which require separate representation before a judge, notably those featuring allegations of domestic violence or where there are serious concerns about non-disclosure of assets. However, he claims that those cases are “in the minority”.
Edwards points out that attitudes and approaches to divorce are evolving across society. “As we move towards simplified family law and procedure, with clearer advice about expected outcomes, divorce available online and legislation that aims to reduce conflict and adversity,” she says, “it is likely that fewer people will see separation as an adversarial process and that more may want to have the means to manage it jointly.”
New approaches, Edwards says, are all “about providing what the individual or couple want, whilst ensuring they understand any risks”.
For help with your separation or parenting issues call BrightSide
Susan Hewitt is the Principal at Bright Side Family Law, a non-litigious family law and mediation practice. Susan has worked as a lawyer and journalist for almost 30 years. She is an accredited collaborative lawyer and family-law mediator who is committed to helping families through their relationship breakdown in an honest, cooperative and respectful manner.
If you are facing a family law matter call or email Bright Side https://brightsidefamilylaw.com.au/contact-us/