Collaborative practice: helping miners to avoid court and minimise the fallout of divorce

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By Family Law Specialist Christopher Swan

Divorce, even under the best of circumstances, is an emotional time. It is normal to feel overwhelmed and lost.

I am of the belief that the law is only one small part of a relationship breakdown and encourage clients to look after their own mental health with the assistance of a trained mental health professional, be it a psychologist, counsellor or family consultant.

I also encourage clients to obtain financial advice from a financial planner or accountant to assist in the development of options for financial resolution of issues that arise when a relationship ends.

I have long believed that involvement in the court process should be a last resort and that separating couples should work together to move forward to reach their long-term goals and address their interests and concerns. The Family Law Act should be seen as a last resort safety net for resolving family disputes.

There is a growing international movement of Collaborative Practice lawyers, mental health professionals and financial specialists committed to helping separating couples avoid court and minimise the harm caused by divorce. In every state of Australia there are Collaborative Practice groups of professionals committed to helping their clients end relationships respectfully with the least possible harm being done to their clients and children. 

Collaborative Practitioners are committed to helping keep their clients out of court and assisting them achieve durable outcomes with their former partners. They can later look back, knowing an outcome was reached that preserved their ability to co-parent their children and helped them to avoid the harm caused by going to court.

Collaborative Practice is a voluntary dispute resolution process where:

  • The parties agree to use good faith efforts in negotiation to reach mutually acceptable outcomes.
  • The parties, their lawyers and other collaborative professionals engage in the process, entering into a written agreement that during the collaborative process the parties will not litigate or threaten litigation.
  • If resolution is not reached, the agreement is terminated and the lawyers cannot represent the parties in any subsequent litigation.
  • The parties agree with the collaborative team to engage in joint meetings to set goals, gather information, develop options and explore resolution.

Using Collaborative Practice, the harm caused to children witnessing conflict between two parents can be avoided.

Using Collaborative Practice, parents can develop a co-operative parenting arrangement that takes into account the type of work schedules that are often part of fly-in, fly-out (FIFO) family life. Options can be developed that could not be obtained by going to court.

The financial and emotional costs of litigation are avoided. Families work out with the assistance of trained professionals what arrangements will work for them.


 

Christopher Swan is one of 15 lawyers accredited by the Law Society of South Australia as a Family Law Specialist. In addition to having graduated in 1982 as a lawyer from the University of Adelaide, he holds a Masters of Mediation and Conflict Resolution from the University of South Australia. He is passionate about the use of Collaborative Practice and is a member of the IACP (www.collaborativepractice.com) and maintains the Adelaide Collaborative Practice blog www.adelaidecollaborativepracticeblog.com. Christopher can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it. or via an enquiry on Swan Family Lawyers’ website www.swanfamilylawyers.com.au.