Why collaboration may be the way forward for dentists in their divorce?
Like many professionals working in the healthcare sector, being a dentist can be a very stressful role. In addition to the long working hours, targets, and financial pressures, dentists’ home lives can also suffer as a result. Sometimes, personal relationships can become strained and can break down – and often, this can be very acrimonious.
Because of the way dental practices are structured, often with monies invested in property or the business by other family members, legal proceedings that follow from a relationship or marriage breakdown can be expensive, protracted and extremely stressful, particularly if other family members have to become involved in the legal proceedings.
Having practiced family law for over 25 years, it is clear that an acrimonious divorce, apart from costing significant sums of money, has a detrimental impact on all parties concerned. Where children are involved, the effect can be long lasting.
In view of this, and taking into account that the current court system is overstretched and under resourced, which means that nothing happens quickly – and also bearing in mind that the court process can be a lottery where control is surrendered to a judge – it makes sense to consider alternatives to litigation, such as mediation, collaborative practice and arbitration.
With mediation, both parties can resolve all issues that arise upon a relationship breakdown, by discussing matters with an independent mediator. Mediators are there to facilitate discussions and cannot provide legal advice, so usually the parties will obtain some parallel legal advice in addition.
With arbitration, the parties nominate an independent arbitrator who will be a senior lawyer. The process is like hiring a private judge, but the arbitrator can arbitrate on a range of issues or just a discrete issue. Arbitration is suitable where parties are unable to reach a decision themselves and need an independent person to make a decision for them, and is a much quicker and more cost-effective way of a decision being made, rather than embarking on litigation through the Court system.
The collaborative approach involves each party instructing a collaborative lawyer and the parties making a no Court commitment at the outset. This involves the parties agreeing that they will not resolve their issues through the Court process but will resolve their issues in a series of four-way meetings with their collaborative lawyers at their side.
Assuming the parties reach an agreement, this can be converted into a formal Court Order at the end of the process. This means the ultimate outcome, i.e. an enforceable Court Order, is the same as if the parties had issued proceedings at Court – but the major difference is that both parties have input into the final agreement and have complete control over timescales. Moreover, usually the costs will be less than if the case proceeds to a final contested hearing at court.
The advantage of the collaborative process is that it is a team approach and other professionals can be brought into the process to assist, such as accountants or financial advisers, who will look at the best solution for both parties in the light of the available assets.
Whether it is possible to have a ‘good divorce’ is debateable. In cases where there is a family business, such as a dental practice, which is needed to provide income and security for the family going forward, in many cases the collaborative approach can be a much better option. It involves a much more holistic approach rather than two parties going into battle where one is seen to be a winner and the other a loser. In the collaborative approach, both parties can be ‘winners’ if they can reach a settlement that they can both live with, and the settlement provides a solid base for each party and the children to build a new life going forward.
The collaborative approach is not suitable in every case and communication is key. If both parties can see the bigger picture and look forwards rather than backwards, the collaborative approach empowers them to be creative as to how to resolve issues that arise when a relationship or marriage breaks down. Where there are potentially complicated issues, including the ownership of a dental practice, resolving such issues in the collaborative process will reduce the hostility and negativity that is often seen in traditional litigation, and lessen the negative impact that a divorce inevitably has.