Relationship breakdowns and the collaborative law process
There is much discussion today from different groups as to what does or should count as marriage and whether Bermuda should embrace the concept of same-sex marriage as much of the rest of the world has done.
While the One Bermuda Alliance has supported the concept of civil rights for same-sex couples who are cohabiting, there is no mention of introducing legislation to provide financial remedies for those cohabiting couples in relationships that have broken down, be they same-sex or heterosexual. Such legislation has been recognised for decades in North America and other parts of the world.
These are challenging topics and need to be addressed in the near future.
No matter what our future in Bermuda holds with respect to these issues, the sad reality is that many marriages and relationships do break down.
While, for many in Bermuda, the mindset of individuals when relationships break down is that a court battle is inevitable, more and more people are embracing the idea of resolving their issues through the use of mediation or the collaborative law process.
The Bermuda Government has introduced legislation to establish a Co-Parenting Mediation Council whose function is to set professional guidelines for training mediators and maintaining professional standards for these mediators. This is with a view to ensuring that all couples who appear before the courts have the option to use mediation to resolve their custody and access issues if they choose to do so. While the Children’s Amendment Act 2014 is yet to be passed in its entirety, the intention is that, in the courts, the judges will be obligated to inform litigants that mediation is an option for them to resolve their issues in matters brought pursuant to this Act.
The view of this Government and the judiciary is that parties in a dispute in relation to their children should be encouraged to resolve their issues themselves with the assistance of mediation, rather than having a lengthy and litigious court battle.
For those who do not know, mediation is a process where two parties meet in the presence of a mediator, who facilitates the communication between the parties to assist them to reach their own resolution to their issues. The mediator is an independent person, who does not take sides and does not offer opinions, but merely facilitates an environment that allows the individuals to come to a resolution. The Magistrates’ Family Court is the venue for unmarried parties with children to resolve the co-parenting issues in connection with the children and the financial maintenance remedies for the children, while the Supreme Court is the venue of married couples primarily. This is a welcomed initiative on the part of the OBA government.
While mediation is also available for married couples to assist in resolving their issues upon separation and divorce, many couples choose to use the collaborative law process to resolve their issues without resorting to court. The collaborative law process has been available to residents of Bermuda since 2006 upon the establishment of the Collaborative Law Alliance of Bermuda.
Couples who choose the collaborative law process each choose a lawyer who will assist them through the process. The couples and their attorneys each sign a participation agreement, which sets out the rules governing the process and confirms that neither of the parties will commence court proceedings while they are engaged in the collaborative law process. This ensures a level of trust within the process.
The lawyers facilitate an environment similar to the mediation process, allowing the couple to communicate effectively to resolve the issues that they face in a manner that fits their personal circumstances. However, they do so in the presence of their lawyers, who have the ability to provide legal advice on the issues at hand and to advise their clients as to the consequences of the decisions made by the parties during the process.
The collaborative law process allows couples to tailor their agreements to meet their own specific needs, rather than having a judge impose an arrangement upon them which may or may not meet their individual needs. The process is designed to ensure that the couples and their lawyers communicate in a constructive and positive manner and allows the parties to explore their underlying interests to reach a common resolution.
In most cases, couples who resolve their issues through the collaborative law process reach an agreement that meets both of their needs and the children’s needs, and allows them to continue communicating positively and effectively for the benefit of the children going forward.
Typically, the collaborative law process takes between two and five meetings, depending on the complexity of the issues, and the process works in accordance with the couples’ schedule as opposed to the court’s schedule.
In the event that the couple are unable to reach an agreement, both parties will hire litigation attorneys to take the matter to court and have a judge resolve the issue.
All members of the Collaborative Law Alliance are also members of the International Academy of Collaborative Practitioners, which is the worldwide body for collaborative practitioners.
It is hoped that with the initiative in relation to mediation, which the Government is endorsing with the judiciary’s encouragement, the collaborative law process is another option for individuals in addition to the mediation process.
The Collaborative Law Alliance of Bermuda will be hosting a training course to train additional members of the Bar within the collaborative process.
• Jackie MacLellan is the president of the Collaborative Law Alliance of Bermuda
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