Notes from Bernie’s conversation on Nightlife with Jen Fleming and Sue Abrams on ABC 702 Radio on Monday night 11 January 2016
Divorce – everyone knows someone who has been through a divorce. With 1 in 3 marriages breaking down and over 30,000 of these involving kids every year, we need to find a nicer, better way to break up. We need to find a nicer way to draw a line in the sand and move on with our lives.
In this hour we’re talking with Sue Abrams, accredited Family Law Specialist and President of Collaborative Professionals (NSW) Inc. and Bernie Bolger, psychotherapist and accredited Family Dispute Resolution Practitioner and Vice President of Collaborative Professionals (NSW) Inc. about the alternative, less conflictual paths which families can take to end their relationship as it is and move forward
When a relationship runs into trouble, what do you see are the first things that a couple would normally do?
There is a big difference between what most couples ‘do’ and what common sense would say they ‘should’ do. The harsh reality is that when the cracks start to show, most people do nothing and let the relationship drift towards its inevitable demise. And then at least one of the parties say they were blind-sided and never saw the end coming! Despite the fact that they haven’t had sex for five years, let alone spend any quality alone time with their partner. There was always something more important – work or the kids or watching the grass grow!
Research says that less than 5% of couples actually seek professional help when the relationship starts to falter. And of those 5%, most of them wait six years before they do so. Given that half of marriage break downs occur within the first seven years, the earlier couples seek outside help the greater the chances that the relationship can be saved. The most devastating financial and emotional event to happen to a couple and family is the breakdown of a marriage / long term relationship and so I would urge everyone to consider counselling before moving on to the next steps. Of course there are certain abusive relationships which are toxic – be it emotional, physical or financial – and in these cases it may be better for everyone involved and especially for the children, that the adults involved separate.
So if the relationship is irreparable, what do you see are the next steps? Does it always have to be lawyers at 20 paces?
That is such an important question and what a couple does next can set the tone for the next 20 or more years of their lives. According to statistics, only 2% of couples can sit around the kitchen table and sort it out for themselves without any outside help. So that leaves 98% of the population needing alternatives. And those alternatives can be the difference between the nicer break up and the break up from hell.
So in the first place I would suggest that a couple try Family Dispute Resolution or Mediation. A good mediator will facilitate honest, respectful communication thus minimising the potential for destructive behaviours long term.
So what exactly is Family Dispute Resolution?
The Federal Government is committed to increasing the awareness and provision of alternatives to litigation, especially for family law disputes. For many families, post-separation is a life crisis that requires a holistic approach from service providers.
Family dispute resolution (FDR) is the term used in Part II of the Family Law Act 1975 to describe a process in which a family dispute resolution practitioner assists people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other. Before filing an application in court for parenting orders, it is a requirement to attempt FDR in parenting matters unless an exception applies e.g. family violence or child abuse.
Family dispute resolution allows couples or families to have difficult conversations in a safe, calm and controlled environment. It enables separated couples to discuss and then make their own decisions about how they would like to resolve their post separation issues whether it be in relation to their children or in reaching an agreement in regards to property & financial settlement. It is a future focussed, impartial and non-judgemental process.
A mediator’s job is about finding common ground and reopening communication channels, even when this may seem like an impossible task.
The best thing about both Family Dispute Resolution and mediation is that they are totally confidential and should a couple be unable to come to a resolution, any of the discussions or offers made during either process cannot be used against them should their case end up in court. Case notes from FDR or mediation, unlike counselling, cannot be subpoenaed.
But the breakdown of a relationship doesn’t just involve adults. In fact over 30,000 families with children are affected by divorce every year. How can we make sure that their needs are heard?
It is really important that the children in a separating family are looked after. When parents are in conflict, they can easily, though often not intentionally, lose focus on the children – particularly when they are immersed in the disagreements of the breakdown with the hurt and anger guiding their decisions. Obviously the best case scenario is when the parents can agree about arrangements for the children with an absence of conflict – this includes agreeing about living arrangements, choices of school, extracurricular activities, pocket money, communication and introduction of new partners to name just a few. Unfortunately in a number of cases the focus is not on the ‘best interests of the child’ and the children end up getting caught up in the conflict and being used as pawns or just leverage of one parties needs over the others.
An important consideration is “the voice of the child”. How can a child be heard in a family breakdown?
One of the best ways to address the impact of the family conflict on children and to take the emotions out of the decisions is to use a Child Inclusive Practitioner (or CIP) in the process.
That sounds interesting Bernie – can you tell me how it works?
Child Inclusive Practice provides an opportunity for children to talk independently with a trained Child Consultant in a safe, supportive and comfortable environment.
Child Inclusive Practice can be integrated into a family breakdown prior to the commencement of any court proceedings.
The Less Adversarial Trial process in the Family Court also has provision for CIP.
During the session, the Child Consultant facilitates a conversation with the child and encourages them to talk about the separation, domestic arrangements and other related topics. Depending on the age of the child, the Child Consultant may use play therapy during the session. The Child Consultant is not judgmental, suggestive or adversarial in tone. The purpose of the session is to gain insights into how the child is feeling and provide a forum in which they can comfortably express themselves.
After the session, the Child Consultant provides feedback and recommendations to both parents in a one hour session. This feedback is then used as a guide and reference throughout the Family Dispute Resolution process.
Generally speaking, Child Inclusive Practice is relevant for school age children, from 5 to 15.
But even with all these interventions, sometimes mediation still breaks down. Are there any other alternatives to litigation where some people end up spending 100s of 1000s of dollars and who knows how many hours of emotional toil just to prove that they are right and their ex-partner is wrong?
An exciting new alternative has been gaining momentum here in Australia in the last few years. It has been used in the US and the UK for a number of years but it is definitely gaining traction here. It is what we call Interdisciplinary Collaborative Practice.
I found this definition on the Law Society of New South Wales Website and I think it encapsulates the spirit of it extremely well. ‘Collaborative Practice is law without litigation, and mediation with advice.’ It is a dispute resolution process in which the parties, their lawyers and a neutral coach enter into a contract (the Participation Agreement) to resolve a dispute without resorting to litigation.
Interdisciplinary Collaborative Practice is a unique dispute process as it offers a ‘team’ (lawyers, a neutral coach, a child consultant (if appropriate) a financial expert or any other professional that may be appropriate) to guide, advise, and support parties achieve an outcome. All of the professionals comprising the team have undergone specific training in Interdisciplinary Collaborative Practice. Both Bernie and I are trained Collaborative Practitioners.
That sounds like an oxymoron – a lawyer not wanting to litigate??
Contrary to popular belief, many Family Law practitioners are constantly trying to avoid the court process for their clients’ as it is a costly, lengthy and legalistic process that applies the legal principles under the Family Law Act with little regard for the interests and needs of the parties and their children. This is not a criticism of the Court – that is what courts are for, to apply legal principles to resolve disputes that people are otherwise unable to resolve between themselves. The Court is not meant to do anything other than apply the law
I have been practising in this field for longer than I care to remember and I firmly believe that Collaborative Practice is the most innovative development that I have ever seen in this difficult area of practice. Through the process the Collaborative Team actually helps couples find a solution that meets the needs of their family as a whole with respect and consideration. This is of enormous benefit for the whole family going forward – the parents’ parenting relationship can be preserved for the benefit of their children and precious times in the future (graduations, weddings, grandchildren etc) can be shared by both parents. Furthermore, to be involved in a process that helps a family achieve such an outcome is so much more rewarding for the lawyer than dragging their clients through the courts.
The first point to remember is the lawyers, the neutral coach and the parties enter the collaborative process with a commitment to achieving an outcome.
The parties and all collaborative practitioners who sign the participation agreement, commit to an open, honest and transparent process. It is an integrated problem solving approach using interest based negotiation – a focus on the interests and needs of the parties. All of the negotiations are conducted in meetings (the number of meetings depends on the complexity of the matter – the issues that arise or exist between the parties).
The Participation Agreement provides that the lawyers will no longer act for the party if the collaborative process breaks down. This provision has the effect of focussing all of the participants to the negotiation on reaching a resolution. It removes the temptation for the parties and their lawyers to posture and/or commence litigation when an impasse arises. Instead, the parties, their lawyers and the neutral coach must focus on working together to overcome the impasse. It can be a challenging process especially when parties are working on outcomes
The agenda for each meeting is pre-determined by the parties and the collaborative practitioners. Between meetings the parties, their lawyers and other professionals work together with their clients to ensure that all of the information relevant to the agenda is available in advance of the meeting. Similarly, the collaborative practitioners consult with each other before the meeting and debrief afterwards.
An important aspect is the use of the neutral coach. In family law matters it is often the non – legal issues which are driving or causing the problems. Some good examples are school holiday times – how it is to be shared – or introduction of new partners. Rather than lawyers being involved in every aspect the parties can speak with / meet the neutral coach to discuss parties concerns, needs and desired outcomes.
This has a financial benefit to parties as the lawyers do not need to be involved in all aspects and allows the neutral coach (mental health professional) to assist the parties with what is essentially a non – legal issue.
But doesn’t this cost a fortune – having two lawyers and a neutral coach at every meeting?
Granted, it is more expensive than mediation (depends on the number of meetings) but it is a lot less expensive than going to court and a lot less emotionally destructive. Ending a relationship is not just about a division of assets – it is also about dealing with the emotional fallout that comes with the demise of a relationship. Collaborative Practice, especially when a professionally trained neutral coach is included, allows for the rebuilding of empathy between ex partners. When this occurs it is no longer a zero sum game. Each person gains an insight into the other person’s needs and desires and works towards gaining the best outcome for the family as a whole. When all parties work together, it inevitably becomes a much quicker process and therefore lawyers’ hours are reduced. Decreased hours equals decreased costs!
It is a forward focused process and definitely a nicer way to break up.
I’m sure you have seen your share of horror stories played out in the Family Court System – what in your mind are the main reasons separating couples should try and avoid going to court?
The breakdown of any relationship is difficult. But the court system should be the last resort for separating families. Parties will experience
- extensive delays,
- increased costs – legal fees, experts whether in parenting or financial matters
- uncertainty of outcome and frequently an outcome that satisfies neither party’s needs
- the destruction of any vestige of relationship and respect that may have remained between the parties; and
- more often that not, damage to the children who invariably become involved in the dispute.
Whilst the majority of matters will resolve by agreement in the time between filing an application with the court and a court allocated final hearing date, the impact on their own life, their relationship with each other, their children and other third parties (extended family members, new relationships) is not a positive one.
Top Seven Strategies towards achieving a nicer break up?
- In the first place, make sure your relationship cannot be repaired. Be proactive – don’t wait six years to call in outside help. And even if your relationship doesn’t make it, the skills learned in relationship counselling especially around communication will stand you in good stead post separation.
- Choose your lawyer well – preferably one trained in Collaborative Practice. If you want to have an amicable separation, make sure you don’t choose a lawyer who has their own agenda and that is about destroying your ex-partner and running up as many billable hours as possible.
- Get good financial advice. Financial insecurity is one of the greatest stressors in intact relationships and this is heightened when a relationship breaks down. A collaboratively trained financial adviser will look at the financial outcomes for the family as a whole and help you both accept your new economic reality.
- Seek whatever professional counselling help you need to get you through the emotional grief associated with the end of a relationship. Well-meaning friends and family think they’re helping when they berate your ex. But they’re not. They are just facilitating your stay in victim mode. A good counsellor will help you deal with the anger, the loss, the sense of failure, the fear and ultimately help you move on towards your preferred future.
- Explore FDR as your first option, especially if there are children involved. All the research shows that mediated agreements are more sustainable and longer lasting because they are your agreements and have not been imposed on you by an overworked Judge in a very busy Family Court.
- Collaborative Practice is without doubt the best way to involve lawyers in the process. Your lawyers will be there as part of the team trying to achieve the best outcomes for the family and so won’t try and unpick any agreements you may have reached had they not been present.
- Never forget the children and what is in their best interests. Don’t fall into the trap of using them as pawns in your War – EVER. Children whose parents have separated with minimal conflict show no behavioural, emotional or academic disadvantages when compared with children of a low conflict intact marriage.