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A Peaceful Divorce (Plus Shtetl Voice and J-Wire Headlines)

October 1, 2013 – 10:33 am5 Comments

By Ellen Gutman:

divorce2The Hebrew term for Collaborative Practice is ‘Lehitgaresh beshalom’ – to divorce in peace. But, can a divorce process ever be peaceful?

Few events in life are as destabilizing and painful as divorce. Divorce and relationship breakdowns are highly sensitive matters and parties are often overwhelmed by heightened levels of anxiety, stress, frustration and anger. Furthermore, the added emotional landslide and financial burden of going to court only increases the conflict between the parties.

With the development of Collaborative Practice, there is now an alternative and innovative way to deal with the divorce process, property settlements and children’s arrangements. Collaborative Practice is designed to restructure the relationship and property between husband and wife out court, while simultaneously sowing the seeds of an ongoing constructive engagement between the parties. Collaboration offers multidisciplinary support to help the family cope with the reality and consequences of divorce, reduce conflict and help the couple make decisions that are the best for the children, themselves and the family finances .

A team of Collaborative Professionals, made up of two legal practitioners, a family consultant and a financial expert, guide the parties to a mutually acceptable agreement. The key element of Collaborative Practice is that the wife and husband are in charge of their own resolution. Whilst the Collaborative Team suggest and provide creative and appropriate options, solutions and compromises, it is the parties themselves who ultimately decide the terms of their divorce, property settlements and/or children’s arrangements. When the terms of the agreement are reached, the Collaborative Team translate the parties’ decisions into a legally enforceable agreement.

Collaborative Practice has made ‘alia’ to Israel. Since 2008, many Israeli couples have engaged in the Collaborative Divorce Process and there are over 200 Israeli professionals who have been collaboratively trained. The emergence of the innovative Collaborative Practice in Israel is not surprising. Religious Jews face a unique problem when divorcing; a civil divorce alone does not release them to remarry. In order to end a Jewish marriage, halacha (Jewish law) requires a get, a Jewish document of divorce, following a civil divorce.

Jewish Australian couples are faced with a similar challenge, namely, that Australian courts refuse to intervene in areas that are essentially of a religious nature, such as a get. This means that when it comes to Jewish divorce, the couple must go through two procedures, civil divorce and religious divorce. Notably, Collaborative Law offers an opportunity for a couple to deal respectfully and privately with the subject of religious divorce in conjunction with civil divorce.  Since, Collaborative Practice requires parties to explore and respect each other’s goals, values and interests, it provides the ideal forum for dealing with an issue that would otherwise be ignored in the litigation model. As such, Jewish couples facing divorce will find the Collaborative Process hospitable to issues that are unique to their faith and lifestyle.

You may wonder what the difference is between Collaborative Law and Mediation. Since there are numerous models of mediation the answer is not straightforward. Unlike mediation, Collaborative Family Law addresses the whole picture that is involved in divorce. It recognises that divorce is more than a legal procedure or event. Many financial and children related issues are involved and often they are complex. Due to the fact that Collaboration addresses the whole picture, parties are able to achieve a more complete, enriching and long term resolution.

Additionally, some mediation models encourage parties to represent themselves. Often, the process breaks down due to power imbalances, intimidation or emotionality, driving the couple to litigation. In litigation, the husband and wife are forced to relinquish their control of the process to a legal representative (who has an interest in the protracted conflict) and give up their control of the outcome to a judge who applies laws and precedents that rarely suit the needs of a particular family. Contrastingly, Collaborative Practice not only keeps the parties in control of the process, it helps maintain important parenting relationships by encouraging open and transparent communication between the parties. Parties are supported by the Professional Team, ensuring that inequality and feelings of resentment do not impact the final outcome.  Disputes can therefore be resolved without burning bridges or severing key relationships, this is especially important when long-term responsibilities remain after the agreement is reached.

Collaborative Law is an innovative, creative and family centered process – a preferred and peaceful alternative to conventional litigation.

Ellen Gutman BA, LLM ( JD) is working with Resolve Conflict Family Lawyers, a firm specialising in collaborative family law and mediation.

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