Alternative dispute resolution methods are such things as collaboration, conciliation and mediation as well as managed negotiation to name a few. They are alternative because they are alternative to going to court. Since Irish family law is conducted in private, i.e., “in camera”, meaning members of the public are not admitted, very few people have any idea of how this branch of law is conducted and what happens in family court. That is a good and a bad thing but that is another article. Unfortunately, it is too late after the court experience to wish you had tried one of the alternative routes. I am over 30 years in private practice and 25 of those are as a family law specialist. For most of my 25 years in family law, I have been a litigation specialist. However, in the past 8-10 years I have explored the alternatives and I have qualified as a practitioner in many of those methods of practice. First of all, I can assure people that collaboration, mediation and managed negotiation do work and work well for those willing to give it their best shot. Secondly, it is a far superior way of resolving matrimonial/family disputes for the vast majority of people than going to court. Thirdly, with the right team, any couple are capable of resolving their dispute alternatively.
Why not court? There are a number of reasons. First Judges are almost always under time constraints which means that you will almost certainly not get the hearing time you would like to get. Second, a Judge is just one person with all that one person’s baggage. Of course, a Judge is going to administer the law and have regard to the precedents but that said, family law is a unique area in that everyone comes from a family and has a particular experience of family which they bring into the situation like it or not. That is true of all practitioners of family law whether they are Judges, barristers or solicitors but in my experience, only those who have worked in alternative dispute resolution have a healthy self-awareness of that fact. Thirdly, your case is likely to be mostly about people ie your family, children etc., and extended family and situations, ie money, houses and schools, rather than law as such and reviewing your particular situation under the strait jacket of the law may not yield the kind of solution best suited to your situation. Cases with complicated legal issues and/or the kind of fraught situation that requires a judicial input should be brought to court. There are situations that will always require a Judge and a court hearing. Most people in a family breakup do not require that kind of intervention. Fourth, this is your life and you deserve the best that money can buy.
There is always resistance to change which I suspect accounts for the popularity of such sayings as – you cannot teach an old dog new tricks. We should not close our minds to the possibility that there might be a better way of doing things. The resistance to change comes not just from people in breakup situations but also from their families and friends as well as legal practitioners for many and varied reasons. I think that for extended family and friends it can be very difficult indeed. Some of them may have gone through the experience themselves and be unaware of alternative methods and therefore, will not recommend the alternatives. It should be pointed out that friends who have separated or divorced themselves can sometimes re-enact their own case through their separating friend particularly if their case was highly conflictual or did not resolve to their liking. Such parties on hearing of alternative more civilised methods of dispute resolution will advise to “get a real solicitor” generally meaning someone who would fight over two flies going up a wall. Apart from the damaging impact that ongoing or high octane conflict can have on families, on the separating parties themselves and on their children, it is important to bear in mind that the higher the level of conflict, the greater the cost. When a child is attacked, or hurt, a parent rushes in to try and remove the hurt. In a marital breakdown, parents will have the same instinct where their own adult children are concerned. That is not always helpful in the situation as it may serve to polarise the sides more than has already taken place and accordingly escalate conflict.
Collaborative family law practice requires a team like approach to work effectively. For a team to be effective that team should be familiar with one another’s styles of working, have worked together successfully in the past, be highly trained and skilled and above all, trust one another. Such a team can achieve miracles as long as everyone involved is open to that possibility. Even if there are no “miracles” there are invariably peaceful and lasting solutions which because they are the product of the team and the team includes the couple themselves, will ensure co-parenting and civility going forward.
Practitioners of collaborative family law often refer to it as “cost effective” which has a different meaning to “cheap” for those sensitive to the nuances of language. Collaborative family law is not cheap and when we say it is cost effective we mean “bang for your buck”. The process works around you rather than you trying to fit into a court framework and schedule. It concerns itself while you are present only with you unlike a typical court day where you will mill around with many other separating couples all competing for the available space and time of the court on that particular day. The process will listen to whatever you have to say and work with you to articulate whatever you feel you need to say unlike the court which will pre-determine what is important and actively silence that not deemed of relevance to the court. The process will last as long as or as short as your particular situation requires unlike the court which will allot a set time for your case and will not welcome much variation in that time table.
Collaborative family practice is not easy. Like all voyages of self-discovery it is sometimes envigorating, occasionally tortious, by times satisfying and always difficult. In my experience, there is very little worth doing in life that is not difficult. It is speedier in an overall sense than going to court but because you participate in the process directly as opposed to having a process enacted upon you, it can feel slower and more intense at the time. You can go through somewhere between 6 and 10 meetings on average spanning 3-9months or you can go to court and from the time you first consult to the preparation, issuing and serving of court papers (ie proceedings) to the date for hearing (trial date) it will take somewhere between 18 months to 2 years. In cost terms, each meeting will seem expensive but when you put the cost together with the fees and expenses involved with going to court, it generally works out the collaboration is less expensive but you also get far more value for your money. And so, you can be a wise old dog or just an old dog – it is your choice!
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