Resolution’s Good Divorce Week 2020. 6 tips for obtaining a “good divorce”

03 December 2020

As part of Resolution’s Good Divorce Week 2020, Edward Cooke, founder of West Sussex-based specialist family law practice Edward Cooke Family Law, looks at how to obtain a “good divorce”

“Want to Consciously Uncouple? Solicitors Can’t. We Can ” said the Google Ad strategically placed by a particular company when I searched the phrase immortalised by Gwyneth Paltrow as the embodiment of her “good divorce” from Chris Martin in 2012.

I was more than a little surprised by the claim in this advert. To be blunt, in my experience “conscious uncoupling” is exactly what we, as Resolution members (many of us solicitors), achieve with ever increasing numbers of clients.

Sadly, but perhaps not unsurprisingly, the media tends to focus on acrimonious, high-conflict divorce among celebrities and the super-rich; however, in my experience as a specialist family lawyer and mediator, mirrored by the experiences of many of my fellow family law professionals, appetite for a “good divorce” is growing.

So, how is it possible to avoid the misery and costs that lengthy and protracted litigation can entail - not just for the couple but for children, stuck in the middle between warring parents – and achieve a good divorce?

Here are my 6 top tips:

1.       Find the right lawyer

A good starting point is the Resolution website – www.resolution.org.uk.  However, there are nearly 7,000 members, so finding the right lawyer can be baffling.

If you wish to have a non-adversarial divorce, finding a lawyer or a firm which can not only represent you in court, but is also fully committed to non-court resolution options, is clearly vital. Lawyers who are also trained as mediators or collaborative lawyers are used to creatively exploring options which help clients find solutions which meet the best interests of the whole family .

Sadly, in my experience, when lawyers get involved in protracted correspondence, people frequently  find themselves drawn into positions. As such, finding a lawyer who will help you find constructive solutions with an open-minded, options-based approach is likely to lead to better outcomes.

Given this, be wary of lawyers whose glossy directory profiles say, for example, “I fight for my clients” or “I take a robust approach to dealing with people” as, intentionally or unintentionally, they may lead you down a path to conflict and litigation.

2.       Get other support

Going through a divorce is widely acknowledged to be one of, if not the, most stressful life events we go through. People find themselves not only managing their grief from the end of a (marital) relationship but also seeking to rebuild another one, in the shape of the parenting relationship. At  the very same time, they are trying to juggle work, supporting children through a major change to their routines and other major changes, such as a house move.

Given all of this, in my experience it’s vital for clients to get all the support they need at an early stage of what can be a really tough time.

A good divorce lawyer should be able to recommend counsellors and psychotherapists who specialise in helping people get through this period of change.

Our firm has links to a wide range of therapists and counsellors and we always suggest this. We recognise we are lawyers and mediators, not therapists, and that many clients need emotional support in order to navigate their way through this period. We think this is absolutely vital.

3.       Find a way to parent co-operatively

Where there are children involved, all the evidence is it is not the fact of their parents’ divorce that is likely to damage them: rather, it is the manner in which the parents handle matters that is most likely to risk causing them long-term harm.

Agreeing arrangements for your children can be an emotive and difficult issue - particularly in the early stages of divorce, where the emotional fallout from the breakup can become entangled in the need to parent together constructively, going forward.

There are, however, ways in which parents can find a way to a better parenting relationship or, as a recently-commissioned report looking at how best to support children said, to “co-operatively parent”.

Attending a SPIP (Separated Parents Information Programme) course can be a very constructive start. These courses are run across the country by specialist trainers and are attended individually by separating parents (with other separating parents). A SPIP gives parents information about the impact of conflict on children and how best to support children through a divorce. Your solicitor ought to be able to signpost you to a local course.

4.       Try mediation

After seeking support from a constructive lawyer, emotional support and help with parenting after parting, if you still cannot resolve this directly with your ex, where is the best place to resolve substantive issues over children or finances?

The best starting point can be mediation:

• Mediation can be a great way to reach a swift and amicable agreement over child issues – and financial matters, too. A mediator is a neutral person (often a family lawyer) who will meet with you and your ex and, over the course of a number of meetings, help you reach an agreement over all issues. You will be advised by the mediator that, as they cannot themselves give legal advice, you can speak to your own solicitor and get whatever advice you require between mediation sessions. Sometimes, as detailed below, solicitors attend mediation with clients (in “hybrid mediation”) – I’ll come to that later.

• Many mediators are qualified to meet with children. I’m qualified to meet with children as a mediator and find parents really benefit from hearing how their children feel. This can really help parents move forward constructively, having taken on board their children’s wishes and feelings.

The guidance we follow as mediators is that children of 10 or over should always have the opportunity to speak to a mediator, as divorce affects children every bit as much as it is does adults.

5.       Or Collaborative law …

• If you do not feel you can sit in a room with your ex-spouse, why not look to resolve issues through “collaborative law”. This follows the same principles as the mediation process, in that children’s interests are at the heart of all discussions; however, instead of the couple attending meetings with just a mediator (which some people may find daunting), they can attend meetings with their own lawyers, both of whom are committed to helping the couple agree all issues, whether in relation to child arrangements or financial matters, out of court.

• In the collaborative model, we frequently work with other professionals, known as “Family Consultants” and “Financial neutrals”. A family consultant helps the couple in the collaborative process navigate the emotional pathway through the divorce. This can be via working with the couple together, through individual sessions or meeting with their children. A financial neutral assists the clients with cashflow forecasting, projecting settlement scenarios and looking at discreet issues such as pension sharing or planning school fees.

It makes complete sense to bring in the appropriate professionals to help couples. I sometimes work with family consultants and financial neutrals in mediation, too. This inter-disciplinary approach ensures clients get the right support they need from the right professional to bring about a constructive outcome. 

6.       If that’s not possible, there are constructive alternatives …

In my experience, if properly supported by professional, principled family law professionals, the vast majority of people can reach the constructive resolution of issues arising out of the breakdown of their relationship, through either mediation or collaborative law.

As such, the suggestion “conscious uncoupling” cannot be achieved through solicitors is utter hokum! I regularly see clients leave their final mediation meeting to go for a coffee or lunch. And, in pre COVID-19 times, they have even been known to give their ex a hug!

Clearly, not every couple can achieve this level of ongoing co-operation and constructive resolution; however, the resources are out there, widely available, through Resolution members, to help them achieve these sorts of outcomes.

Sometimes, achieving “conscious uncoupling“ is just not going to be realistic. For example, one person may have been subjected to abusive behaviour or may have fundamentally eroded trust. In these situations,  things can be more difficult.

However, when conflict is higher, Resolution members can and do help clients achieve “better divorces” than what was hitherto the case, thanks to a number of innovative processes developed in recent years by Resolution members and others, such as:

•  Hybrid mediation. In this process, the couple meet the mediator with their lawyers, across a number of meetings. This is an excellent process in more complex cases or in situations where there is a higher level of conflict, since the couple each have the support of their lawyers through the mediation process. The mediator can see the couple separately or together and, as such, there is flexibility to suit the situation. The mediator can also “hold confidences” in relation to financial settlement proposals – which can be very helpful in enabling the mediator to resolve more complex disputes.

•  Early Neutral Evaluation (ENE) or “Private FDR”. When all forms of mediation or collaborative law have not led to the resolution of issues, the next best step can be for the couple (either with or without their lawyers) to meet with an “Evaluator” or “Private FDR Judge” for an Early Neutral Evaluation or Private FDR. This form of private hearing takes place before a jointly-appointed, private “evaluator” or “judge”, who gives an indication, having heard from each party about what he or she thinks is an appropriate outcome.

    ENE tends to be used for children issues and Private FDR for financial matters, but their formats are broadly the same. The intention of the                process is for each party to hear from a neutral third party as to the likely outcome if matters were to be decided in court, with a view to the              parties reaching an agreement without having to go to a full court hearing.

•  Family Arbitration. Finally, when all of the above avenues have been exhausted, arbitration is a good alternative to lengthy and costly court proceedings. An arbitrator is private appointed to act like a judge and make a decision (a determination) on whatever issues the couple have not been able to resolve.

    Arbitration has its pros and cons. Many couples prefer to reach their own solutions, rather than have an outcome imposed on them either by an     arbitrator or a judge. However, it can be a better alternative to court proceedings for a number of reasons – not least in terms of speed, the               ability to set your own timescale and, for those in the public eye, confidentiality. It can also be an excellent way to reach a swift resolution on             one or two issues, for example if the couple can agree almost everything in mediation or a collaborative environment, but just need help from         an  arbitrator to make a decision on one or two remaining issues without needing to involve the court.

In conclusion, whilst not every couple is able to “consciously uncouple” a la Chris and Gwyneth, and indeed the degree of ongoing communication varies between couples, in my experience the vast majority of clients should be able to achieve a Good Divorce. The key is to seek the right support and get early advice from a Resolution lawyer (ideally on recommendation or having researched their experience and credentials in this area).