Collaborative Divorce

Listen to Bernie Bolger and Jamie Burreket in conversation with Sarah McDonald on ABC 702 Nightlife as they discuss a Collaborative Divorce

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A Collaborative Divorce

Divorce – the statistics are in and they aren’t good:

1 in 3 marriages end in divorce

2 in 3 second marriages end in divorce

49,000 couples filed for divorce in family court last year

40,000 children were affected last year by divorce

The psychological and financial costs to the individual, to the family and to society are staggering and need to be addressed.

In this hour we’re talking with Jamie Burreket, one of the country’s leading Family Lawyers and Bernie Bolger, psychotherapist and accredited Family Dispute Resolution Practitioner and Vice President of Collaborative Professionals (NSW) Inc. about the alternative, less conflictual way in which couples / parents can end their relationship and move forward with dignity and respect.

Q:  Before we talk about better ways to help families navigate their divorce it might be good to get some context or background about the ‘crisis’ that is occurring in the Family Court at the moment.  It has been the subject of a lot of media coverage in the last 12 months, even more so than normal.  Why do you think there has been so much interest of late?

A: It’s true – family law has gone from being one of those topics which rarely features in the news to being the subject of a number of media reports recently. This has mostly been driven by two initiatives announced by the Turnbull/Morrison Government. The first is the request for a comprehensive review of the Family Law System by the Australian Law Reform Commission. The second, is the proposed merger of the two Courts in Australia who hear most of the Family Law cases, the Family Court of Australia and the Federal Circuit Court of Australia.

The Law Reform Commission delivered its report to the Attorney General last week. He hasn’t released it to parliament yet. We don’t know the contents of the report obviously, but we have some idea from the various discussion papers that have been released by the Commission about what they are likely to grapple with. I think the recommendation are likely to be controversial and represent a huge shift in the law – but they are just recommendations and the path to changing the actual law is a complicated and slow one.

The proposal to merge the two Courts was also been controversial. It failed last week with the Attorney-General conceding that he did not have the numbers in the Senate to pass the bill. With an election around the corner the issue is dead in the water for now. I suspect that it won’t resurface until our next government (whoever that will be) choses to tackle the recommendations made by the Law Reform Commission.

Q: What has brought about the need to look at change now?

A: As you said at the top of the hour, you said that the statistics aren’t good.  The system is broken on so many levels but if we look purely at the Family Court, it is my view and that of many of my colleagues that delay is the principal reason in why the Court system is failing today.And the root cause of that delay is a failure by successive governments to properly resource the Court – essentially to appoint enough Judges to handle the work load.

There are a lot of figures thrown around. There are some challenges to the accuracy of a lot of them. Particularly, while Family Law has been so politicised of late. At the worst end of the spectrum – in Sydney in the Family Court of Australia and perhaps to a less degree the Federal Circuit Court – people can wait up to 4 and 5 years for their case to be finished. More if there is an Appeal.

When you consider the average length of a failed relationship in Australia is only 8 years – and many more are much shorter, it’s not uncommon for people to have a Family Law case after they separate that can take longer to finish then their relationship lasted.  And that’s before we even get to talk about the negative impact on children during their most crucial developmental years.

The delay has made Court an unacceptable pathway from many clients. I now spend most of my time working with clients to resolve their cases without using the Court process.

Q: That brings to mind though an interesting thought – is the end of a relationship a legal issue or an emotional issue, or both? 

A: I think that question goes to the heart of the separation conundrum. We have come a long way since Descartes’ ‘I think therefore I am’.  Research says we make decisions emotionally in the first place and then rationalise those decisions with logic. It is interesting that when couples are facing the most devastating financial and emotional event in their adult lives, the accepted norm in today’s society is to contact a lawyer. Not a counsellor or a financial planner – a lawyer. And the more aggressive the lawyer the better. So often we hear phrases like ‘I need my lawyer to be my rottweiler’.  So we need to change the conversation. We need to let people know that there is a better way to separate and it doesn’t have to be a zero sum game with winners and losers.  It is possible to separate in a way where social scientists, lawyers, mediators and financial experts all work together with the couple to achieve the best outcome for the family – and that way is called interdisciplinary collaborative practice.

Q: Interdisciplinary Collaborative Practice – tell me more?

A: This is an exciting new alternative which has been use in the US and the UK for a number of years and which has been gaining momentum here in Australia in the last few years.

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.

Q: From a legal point of view, how does it differ from other Alternate Dispute Resolution methods?

A: It’s unique in that it is designed to produce constructive and fair solutions which meet the both the values and the concerns that are important to the individual people who are separating.

Each person engages their own lawyer and then jointly a neutral ‘coach’ is also engaged. This team – the former spouses, their lawyers and the coach conduct a series of meeting (where everyone is in the same room) to sort through and solve all the issues that arise from their break up. What makes it special is:

  1. The lawyers are engaged specifically to work together to help both parties find a solution that serves as the best outcome for the family as a whole;
  2. The lawyers are not allowed to go on and represent their client in Court if the collaborative process doesn’t work – this really locks the lawyers in to working      hard to get a solution; and
  3. Through the whole process, the lawyers and the separating spouses, have the support of the neutral coach – who normally has a background in            mediation and is a mental health professional – to help them deal with the emotional aspects of the separation.  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 clients can         speak with / meet the neutral coach. This has a financial benefit to parties as        the lawyers do not need to be involved in all aspects and allows the neutral           coach to assist the parties with what is essentially a non – legal issue.

Q: So are you saying that Bernie can help the lawyers deal with the emotional aspects of the separation as well?

A: I think everyone underestimates the vicarious trauma that affects professionals who are involved in breakups.  There is always going to be emotion associated with a break-up.  And contrary to popular opinion, lawyers are actually human as well. As social scientists, we are used to the idea of ‘supervision’ but lawyers don’t usually participate. As part of the collaborative process, the team is given the opportunity to debrief with each other and talk through some of the trickier emotional issues.

The process of collaboration is also unusual in that it humanises the divorce process for all the professionals. If you can picture a scenario where both clients and their lawyers are sitting around a table with me and we ask the clients to individually articulate what has brought them to the table and what they would like to achieve as an outcome.  We ask them to talk about what they would like to be recognised for within the relationship but also what are their fears going forward, what keeps them awake at night per se. This can be incredibly emotional and not always comfortable for everyone in the room. A coach helps contain that emotion and move people through it. Having heard about the relationship from each person’s perspective and also about their needs and concerns going forward, the team works together to come up with solutions which will achieve the best outcome for the family as a whole.  This might involve bringing in other experts to the process.

Q: What other experts are you talking about? Someone to help make decisions about the children seems like an obvious one?  Or if there are complicated finances?

A: We can answer that question in two parts.

The first is how to consider “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.

Child Inclusive Practice provides an opportunity for children to talk independently with a trained Child Consultant in a safe, supportive and comfortable environment.   .

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.

Another additional expert who is often brought into a Collaboration is the financial expert. This can be equally important for the case where the finances are complicated as it is in the case where one person has had no idea of the family finances.  Financial insecurity is akin to physical torture, especially as we get older.  Having the input of a financial adviser who can model what the financial future looks like for each person going forward and coming up with useful, alternative suggestions with the rest of the team can be the magic ingredient in getting the couple to come to an achievable, workable outcome for the family as a whole.

Q: But doesn’t this cost a fortune – having two lawyers and a neutral coach at every meeting and additional experts as and when needed?

A: Divorce in Australia is expensive. We enjoy complex complicated enriched lifestyles. Navigating through a separation in that environment isn’t easy. You’re going need to help. Everyone’s experience of the cost of a Collaboration is going to be different. In my practice – it’s at the cheaper end of the options that are available. More importantly, though for a little bit extra costs you get a whole lot of more help. And a whole better outcome. 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. Interdisciplinary Collaborative Practice 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.

Q: 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?

A: The breakdown of any relationship is difficult. If you’ve got to the point where you have to let an umpire like a Judge make decision for you, you’ve lost control of the process and control over the outcome.  The reality of choosing to let a Judge decide is:

  • waiting 3 to 4 years for a decision;,
  • spending perhaps hundreds of thousands of dollars on lawyers and accountants;
  • and all for an uncertain outcome that never satisfies either party fully.

The chances of you and your former partner having any respect for each other or care for each after going through all that is small. If you have children, you’re sabotaging your best chance to be constructive and supporting co-parents. More often than not, damage to the children who invariably become involved in the dispute.

Most people come to this realisation at some point before they see a Judge, most matters will settle  by agreement in time, but the impact in the meantime  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. We can do this better, in most cases.

However, this is a panacea for all family law issues. We will always need a place of last resort in the system. There will always be families, which despite their best intentions, for reasons outside their control – will need a Judge. These families need a clear and fast path to that intervention.

Q: So why aren’t we hearing about this process more?  Why aren’t people shouting about it from the roof-tops?

A: My hope is that times are changing and that this will become the normal way to separate rather than the exception.  Gwyneth Paltrow and Chris Martin managed to consciously uncouple, Jeff and MacKenzie Bezos tweeted their praises for each other post separation.  My hope is that through the Collaborative Process mere mortals will get to do the same.

Five Reasons to choose a Collaborative Divorce

  1. You place value on the relationship you are going to have in the future with your former partner or spouse;
  2. You want a creative solution that fits within your values and addresses your needs and concerns (and those of your former partner or spouse), not just a solution that is imposed on you by a Judge who doesn’t know you;
  3. You want to make sure that you and your former spouse partner have proper professional support as you make decisions about how you are going to separate;
  4. You want a process where you and your former spouse preserve your dignity;
  5. You maintain control of the process and in that way your life.

Choosing to separate doesn’t have to mean choosing to throw yourself at the mercy of institutional solutions like Courts.