Collaborative practice focuses on common ground in family disputes
Hong Kong people are familiar with television soaps portraying lawyers who are extremely adversarial in the courtroom, sometimes shouting or using strong language when representing their clients.
While this makes for good TV drama and is enjoyable to watch, in real-life situations litigation can be difficult and very stressful for the parties involved.
In family disputes, entering into the justice system signifies a shift in the relationship between parties - from most-trusted friend to adversary. In such situations, it becomes a win-at-all-costs battle for ex-couples, with each side blaming the other if they are fighting for custody of young children. Details of private lives are disclosed and what unfolds in court can hardly be welcomed by either party.
In some jurisdictions, when it comes to family disputes, traditional adversarial litigation is gradually being replaced by what is known as collaborative practice. The parties sit down and discuss matters in an effort to find the most suitable settlement.
This is done with the assistance of lawyers, but other professionals such as mediators, academics and psychologists are involved and are trained to assist couples involved in a divorce case. These additional professionals are crucial as they, rather than the lawyers and judges, deal with the welfare of the children. While in courtrooms, judgments are based on "access, custody and control" of children, parties in the collaborative process might focus on the "care and upbringing" of their children. Flexibility is encouraged.
Also, an anchor statement is drafted as a guiding agenda at the beginning of a case, so parties can be more focused, less hindered by court procedures and the team of professionals can tailor the best solutions for each case based on the parties' needs.
Further, these professionals agree not to take part in any related litigation if subsequently the parties bring their case to the court.
A sense of trust can be developed in the collaborative process, and the privacy of parties can be preserved.
Above all, there is less psychological stress. Being in court where you are in legal conflict with someone who was once your closest companion is unspeakably harsh, especially when the fate of small children is involved. Collaborative practice is a viable alternative to avoid the misery of these court cases.
Currently, a group of pioneers are promoting the use of collaborative practice in Hong Kong and I really hope it can be implemented here.
Iris Yu, Diamond Hill