I think there is huge confusion with the term mediation, what does it mean, how much does it involve giving legal advice or information or does it just mean listening to two people arguing? How does collaboration fit with mediation – what is the difference?
I think as lawyers we have really failed to get across the message of collaboration. All too often either the lawyers or their clients are more interested in point scoring and achieving minor victories when, in reality, there are no winners when parties separate. Both those going through a divorce, and more particularly their legal advisors, need to be far more responsible about looking at the bigger picture, realising how damaging conflict is to children. It is not helpful to be representing the mother or father and be trying to win an argument about how much money should be paid or whether one person is cohabiting or not. The emphasis should be on reaching some sort of solution. There is no ideal scenario but we should all be focusing on the end result; working out how a family that is separating is going to continue in its new format as harmoniously as possible, whilst having due regard to the anger, bitterness and hurt there may be as a result of that separation.
Arguing tends to be pointless because at the end of the day, whether you are sitting round the table or going through lengthy legal proceedings in Court, the result is generally a compromise either imposed by a Judge at the end of very expensive legal proceedings or reached by the two parties with their legal advisors much sooner and much more cheaply, without the need to go to Court.
Collaborative law is the process whereby the two people going through a divorce or separation sit round the table with their legal advisors who each act for both of those parties, rather than taking sides. This is so that as far as possible there is an emphasis on reaching a solution that suits everyone. Realistically this can only be achieved if both parties are, to a certain extent, willing to compromise rather than “win”.
The emotional damage done to children as a result of conflict during a separation is not in doubt, but we need to be aware of how we can all work together to take steps in attempting to reduce it.