A kindler, gentler divorce may be a contradiction in terms, but the means to achieve it has arrived in Australia. Just a few weeks ago at a conference in Sydney, a group of good-hearted, specially trained lawyers met to discuss the ways a marriage in this country could be dissolved using a process called collaborative family law.
Founded in the USA twenty years ago, collaborative family law involves separating couples and their lawyers sitting around a table and openly and honestly discussing the range of matters of importance to them, including the well-being of their children. The goal is to agree a fair settlement that best addresses their individual needs, interests and goals.
Negotiations are conducted courteously and in good faith, with both parties bound to disclose all pertinent information and material fact, and not to take advantage of “mistakes” by the other side. Should the couple go to court, both collaborative lawyers are effectively sacked, because before collaboration starts they sign an agreement disqualifying them from litigating if it fails.
But what really makes collaborative law a winner is the space the process makes for shared experts that are hired by both parties, and don’t take sides.
Foremost among these is the child consultant, who meets with each of the couple’s children in order to bring their experience and needs to the negotiating table. The goal is for both spouses to comprehend their children’s experience of conflict and their post-divorce requirements in a deep and transformative way. The resulting wake-up call can lead parents to change their attitude to their former partner and they way they act around their kids, and to negotiate parenting arrangements that support each child’s developmental needs.
I am the child of divorce. My parents separated in the early 1970s when I was seven. There was alimony and visitation, a reconciliation followed by divorce, and a custody battle that only ended when my mother agreed to let my brother move in with my Dad. They rowed in person and over the phone until I left home for University at age eighteen.
Around 12 per cent of children in intact families experience mental health problems in childhood. This figure rises to 25 per cent for children of divorce. Children need their parents to tune into their needs when divorce happens, and to be emotionally available to them. Conflict, which turns to acrimony as the years progress, gets in the way of that happening, This is why the children of conflicted and litigated divorces have the worst mental health outcomes of all.
A 2006 Australian study found that one third of children whose parents reported high levels of conflict had psychological disturbance at clinical levels. Other studies show they are more likely to leave school early and more likely to divorce as adults. “Conflict in divorce impacts children in terrible ways,” says Professor Jennifer McIntosh. “Children can’t afford settlement processes that exacerbate conflict between parents.”
A child-focused intervention in a collaborative divorce process may reduce the conflict between parents and, consequently, improve the quality of children’s relationships with both parents, and their mental health outcomes
Sitting in a hotel conference room, listening to the potential of the collaborative process to produce better outcomes for parents and children, I felt a lump well in my throat. How different things might have been for my brother and I-how much heartache might have been avoided-had such an innovative legal process been around then.
Collaboration Takes Sting Out of Separation and Divorce Sunday Sun-Herald (Sydney)