Problems associated with collaborative practice

AuthorEugene Davy
PositionHead of the Family Law Department in Hayes Solicitors
Judicial Studies Institute Journal [2009:1
I was asked to write an article in this journal outlining some
problems associated with the practice of Collaborative Law, and I
do so as a supporter of this new concept and framework of
practice, and as one who was amongst the first group of Irish
family law practitioners to have trained in this area in 2004.
We legal practitioners and others invariably assess cases
and judge success by reference to the result. For example:
He did very well because she only got 32.5% of the total,
and she has to transfer her shareholding in the family
business to him; and
She did very well because she ended up with more than
was offered outside Court.
A common criticism of the way we deal with cases is that
legal practitioners (and judges) are insensitive to, and have no
appreciation of, the damage that can be caused to individuals and
personal relationships by the legal process. Collaborative practice
is a response to such criticism, and it undoubtedly provides a
framework which allows couples to resolve disputes in a manner
which is more human and sensitive, and in particular more
conducive to each party overcoming and resolving the hugely
important personal aspects of any family law dispute.
It must be emphasised that all that collaborative practice
sets out to achieve can also be achieved by adopting and suitably
adapting the more traditional approach to settlement negotiations.
There is a perception that all cases which proceed in the
traditional way either end up in court, or are managed and settled
in a hostile framework. While this is so with many cases, it is not
so with many other cases which do settle amicably at an early
stage – though far too few do so.
* Eugene Davy is Head of the Family Law Department in Hayes Solicitors.

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