Marriage breakdown doesn't always have to be fought out in court, writes Carol Coulter, Legal Affairs Correspondent

With legal costs in family law cases under the spotlight, many people are considering whether there are alternatives to litigation in this sensitive area. Under the 1995 Divorce Act, a solicitor must inform a client of the possibility of mediation, but in practice mediation has not proved to be a viable alternative to litigation for most people, especially where assets are involved.

A new type of legal service has become available that may offer an answer for some of the 6,000 or so couples who look each year to formalise their marriage breakdown. In 2004, the last year for which figures are available, there were 3,914 divorce applications and 1,702 applications for judicial separation.

Collaborative law in family law has been practised in Britain for a number of years, but is a relatively new concept here. However, a number of lawyers have now trained in this area and started to practise. It involves a collaborative negotiation that looks to the future of the separating or divorcing couple, seeking to find a fair and equitable solution to their separation and the best possible co-parenting arrangements for their children.

According to Cork solicitor Anne O'Neill, "clients and solicitors must agree to work together respectfully, honestly and in good faith". A central part of the process is the full and mutual disclosure of all assets at the outset.

Each party has his or her own lawyer. The process involves lawyer-to-lawyer meetings, as well as meetings between the lawyers and their clients, and eventually meetings between all four. At the lawyers' meetings, potential areas of difficulty for the respective clients are thrashed out, to ensure that the eventual round-table meetings of parties and lawyers are as productive as possible.

The lawyers set the agenda for each round-table meeting, and this is designed to ensure that tangible progress is made at each meeting, which also serves as a confidence-building measure. So, for example, there might be agreement on custody of and access to the children at one meeting, and on maintenance at another. The question of the family home might be the subject of a third. Between four and seven round-table meetings are usually involved, with additional meetings between the lawyers and between them and each of their clients.

The process culminates in the lawyers drawing up a deed of separation, where a legal separation is involved, or terms of consent, where a judicial separation or divorce is involved. A separation agreement often precedes a divorce because of the four-year wait for a divorce application prescribed by the Constitution.

Before embarking on collaboration, each party must sign a "participation agreement" which sets out the principles of the process. It contains a provision that if it fails, the solicitors collaborating cannot then go to litigation. The parties must find new lawyers for taking their case to court. Any suspicion of bad faith - say, by one party withholding financial information - leads to the automatic termination of the process.

Experts can be called in to help in the negotiations. Typically they would be accountants, auctioneers or, where children are involved, child psychologists.

Collaborative law differs from mediation in that both parties are legally represented, and the agreement is thrashed out jointly between the parties and their lawyers. In mediation a single individual, a mediator, is involved, who is not necessarily legally trained, and who helps the parties to settle their differences. The ultimate agreement usually needs to be finalised by lawyers anyway.

This system also differs from the usual adversarial nature of dealing with family-law disputes, where the lawyers for each side promote the interests of their client, where tactical positions are adopted as bargaining tools, and where the threat of court action is always waiting in the wings. While many cases settle without going to court, an amicable settlement, attempting to preserve civil relations between the parties and good co-parenting arrangements, is not the first priority.

In her leaflet describing collaborative law, Anne O'Neill asks each prospective client to consider a number of questions before opting for this process. They include: "Do I want a civilised, respectful resolution of the issues?" "Do I want to protect my children from the fallout associated with traditional court cases?" and "Do I want to retain control over decision-making, as opposed to leaving it to a judge."

O'Neill admits to evangelical zeal in promoting this type of family law, and says that in her practice, O'Driscoll's in Bandon, she has designed a room specifically for collaboration.

"It has a round table, which I believe to be essential, an up-beat painting oozing vitality, refreshing lilac curtains, comfortable chairs, a tea and coffee trolley, plants and even a very large amethyst rock. And I'm not finished yet!"

Finalising a separation or divorce through collaboration is not cheap, but it is cheaper than going to court. An average case, not involving additional experts, will cost each party about €6,000 plus Vat. An average case that goes to the Circuit Court, even if settled, costs each party about €12,000. This may also not be the final sum, and one or other party may return to court to have court orders varied, or to seek to have them implemented.

A divorce decree following the collaborative process must be granted by the court but this becomes a formality.

Of course, this collaborative process may not always work. One party may opt for it because it appears cheaper, rather than because he or she is really committed to a fair and amicable solution. Many meetings may take place with this party dragging their heels over disclosure of means, or arrangements for children, because he or she does not want to make any concessions to the estranged spouse. The process will then have to be abandoned.

This will end up even more stressful and expensive, as traditional style court-based family litigation will then be embarked upon, with a whole new set of lawyers, and a whole new set of legal costs.

The Association of Collaborative Practitioners can be contacted through its chairwoman Patricia Mallon, at 021-4274018, or patriciamallon@eircom.net