Simple Divorce Advice

By Bev Clark

In mediation there is one neutral mediator who assists the parties to reach an agreement. Mediation can be difficult where there is a power imbalance. The mediator is not in a position to provide either party with legal advice and cannot be seen as advocating a position for one of the parties.

If one of the parties becomes unreasonable or stubborn or lacks negotiation skills or is so emotionally distraught that they are not able to participate fully in the process, then the mediation is likely to fail. If the mediator tries to resolve those issues the mediator may be seen as biased, whether or not that is the case. If the mediator is not able to resolve those problems then the mediation can break down or any agreement that is reached may be subsequently considered to be unfair.

Collaborative Law was designed to improve the model of mediation and to deal with the problems illuminated above. While maintaining the same absolute commitment to settlement as the sole agenda the process nevertheless facilitates each party being represented and receiving advice and assistance throughout the process. If one party lacks negotiations skills, financial understanding, or is emotionally distressed or angry, the assistance of their collaborative lawyer is available to remedy those issues. It is the job of the collaborative lawyer to work with their own client if the client is being unreasonable and to make sure that the process stays positive and productive.

MISUSE OR DISHONESTY

No collaborative professional can guarantee that a party will be honest or not try to take advantage of the process. This can certainly happen. That can also happen in conventional adversarial proceedings as well. The difference about a Collaborative Law approach is that the collaborative agreement requires a lawyer to withdraw if he or she becomes aware that their client is being less than fully honest or is participating in the process in bad faith.

For example, if relevant documents are withheld and not disclosed or if a party is deliberately delaying matters for economic or other gain, the lawyers have promised in advance that they will withdraw and not continue to represent the client. The same is true if the client fails to keep agreements made during the course of negotiation, for instance an agreement to engage in joint parenting counselling.

Not all parties are good candidates for Collaborative Law. You are the best judge of your partner’s basic honesty and integrity. If you have confidence in their basic honesty then a collaborative process would be a good choice for you. The choice is ultimately yours and is just one of several choices that you have in moving the best way forward in resolving your dispute.

Further information about the process can be obtained from the International Academy of Collaborative Practice www.collaborativepractice.com or from the website of the Law Society of South Australia www.lawsocietysa.asn.au  Bev Clark at Belperio Clark would also be happy to speak to anyone in relation to this process.

Please contact Bev Clark on(61) 08 8212 1322

View original post: Collaborative Law Versus Mediation

Popularity: 2% [

If you’re new here, you may want to subscribe to my RSS feed. Thanks for visiting!