Splitting up is easier if you collaborate

9:51am Wednesday 12th November 2008

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STEPHEN LEWIS reports on a new, less confrontational approach to divorce.

DIVORCE is one of the most traumatic experiences anyone can go through. There is the sense of betrayal that the person you once loved more than anything in the world has chosen to leave you.

If you have children, they will be torn apart as well. You may lose half your friends at a stroke, while others may not know whose side to take.

Then there is the uncertainty. Who will win custody of the children? Who will get the house? Will one partner have to move or find another job?

Divorce lawyer Nicki Mitchell, of York legal firm Sykes Lee & Brydson, has seen it all: the bitterness, feuding, anger, betrayal and hurt.

“They say losing someone through separation is in some way even more difficult than losing someone through death, because there was the choice to leave,” she says.

The temptation, when emotions are high, is to call in a lawyer and head for the courts. The adversarial nature of traditional divorce doesn’t help, however.

Mediation often works well, particularly with the emotional aspects of separation. But mediators cannot offer legal advice because they have to remain impartial. Also, any agreement reached is not legally binding, so couples still have to see a lawyer.

Now there is a “third way” – collaborative family law. It is the approach reportedly favoured by Madonna and Guy Ritchie, right.

Each partner appoints their own lawyer, but instead of heading for the courts, they sit down together around a table and thrash out a legal agreement.

There is even a contract to stipulate they will not go to court, Nicki Mitchell says. With the threat of a court appearance lifted, the process becomes less heated. Couples can find their own solutions, with a lawyer advising them at every step and defusing emotional difficulties.

Having two lawyers costs money, but it is cheaper than going to court, Nicki says – and it is less traumatic. The children suffer less too, because their parents are not so angry with each other. And because couples are involved in drawing up the agreement, it is more likely to work.

Nicki was one of the first family lawyers in York to train in collaborative family law, in 2005. Now, most of the city’s family law firms have at least one lawyer trained in the approach.

Next Wednesday, there will be an event at the Guildhall to raise awareness about the approach, attended by the Lord Mayor and a district judge.

Nicki is optimistic that collaborative family law will take off.

“Nowadays, a high conflict court battle doesn’t need to be the inevitable end to the breakdown of a marriage,” she says.

* To find out more about collaborative family law, contact Nicki Mitchell on 01904 731100.

John and Jane Smith* are undergoing a collaborative divorce. Here are their stories...

Her story

JANE met John in York 25 years ago. They were in their early twenties. “We started going out together and got married within about 12 months,” she says.

Thirteen years into the marriage, they had a child, Jackie*, now ten.

It is not easy to pin down what went wrong. Both were busy, with full-time jobs. “Neither of us had a string of lovers, or anything. We didn’t have time. But people change and develop. I still love my husband. We’re just not happy together.”

Jane had seen family members go through “horrible, horrible” divorces. “We didn’t want our daughter to go through that.” She did research online, found out about the collaborative approach and contacted a lawyer at Harrowells in York. Her husband contacted Nicki Mitchell.

Over the next six months, Jane and John held meetings with their two lawyers. “You’d come together, the four of you, with large cups of tea or coffee and biscuits, and decide how you’d want to move forward.”

Meetings could last two hours or more. It was emotionally draining, but ground rules were set, and she and her husband made personal statements that they wanted to end the marriage with dignity.

There was nothing adversarial about the process, she says. “You knew the lawyers were working together, not thinking ‘right, I’m going to get the best for my client’. They wanted to get the best for both of you.”

Inevitably, emotions ran high, but because of the support of the lawyers, matters did not degenerate into bitterness.

The process will cost money, but not as much as going to court, Jane says. And it has been quicker than exchanging letters and threats on the way to court.

There is still one meeting to go, but they have ironed out the main details. They will share custody of Jackie, and have sorted out the finances. Because they have not yet been able to sell their Ryedale house, they are still both living there. Once they can sell, they will each buy a smaller house close together.

It has been a civilised way to end their marriage, Jane says. “We collaborated, as we have for 25 years.”

His story

JOHN met Jane at a coffee shop in Walmgate, and soon decided she was the woman for him. They were married within a year. There was a rough patch seven years into the marriage, but counselling saw them through. What changed things was the birth of their daughter.

He “loves his daughter to bits,” he says. But having a child to look after brought out the differences between him and Jane.

John always felt he had to be the disciplinarian. He who had to lay down the rules, tell his daughter not to do this or that, send her to her room if she misbehaved. Jane was far more relaxed and he felt undermined by her lack of support.

“Children have to understand who is boss, for their own good,” he said.

“And parents have to support each other in that. That’s not something Jane ever did. I didn’t see why it always had to be me.”

Even though things were clearly going wrong, John was keen to try counselling. It was Jane who insisted on a divorce, he says.

The week they told their daughter they were going to separate was the worst of his life. Jackie already knew they were having problems.

“Children are not stupid.” She was very upset, but they explained they would both be there for her.

The emotional entanglements were heightened because John and Jane also work together – Jane is John’s boss.

Given all the circumstances, the collaborative approach to agreeing on their divorce worked very well, John says. “It made it easier to bear.”

The approach was formalised, and the presence of two solicitors at the table with them cooled matters. “That helped enormously. However much you might think that the process of divorce should be straightforward, there is a lot of emotion involved.”

Now the worst of the process is over. They still have to sell the house.

“But I’m reasonably optimistic for the future. There is a future.”

* Names have been changed