“Discourage litigation. Persuade your neighbours to compromise whenever you can.” - Abraham Lincoln

In my two previous articles in this series I set out how a couple can take control of negotiated processes to amicably end a relationship. But what if a couple are feeling a little fraught, the asset base is complex and/or there is a power imbalance? Does this automatically mean litigation and expense? Not if they’re determined to get creative.

If mediation is unsuitable this does not mean that all round table formats are doomed to fail. Sometimes putting lawyers (boo!) back in the room is exactly what is needed (hurrah!). This can even out the power dynamic and assist with complex discussions that may cover tax issues, payment structures and the gearing of implementation of a deal. Other professionals can still be invited into the round table process to provide neutral reports or undertake accounting exercises.

What becomes critical to the success of round table working is the approach of the lawyers. Clients often take their cue from their lawyers in these types of meetings and the tone and intention set at the beginning can make or break progress. For obvious reasons, a divorcing couple wishing to explore working round table should use lawyers who have experience of such a format and, where possible, retain lawyers who know each other and have worked together before. Best of all, if one of the couple already has a lawyer, it would be sensible to ask that lawyer who they recommend and would like to work with. If the lawyers already have a professional relationship and mutual trust and respect this will enhance the negotiations significantly. Further, those lawyers will have worked with other professionals who they know will understand and enjoy working round table.

Round table discussions themselves can follow a format similar to mediation. There will be an agreed timeframe for information gathering, a short agenda for each meeting, proposal discussions, and action points for the next meeting. The drafting of agreements or Orders can be revised and revisited throughout the meetings to ensure everyone is involved and informed. The lawyers will keep discussions disciplined and focused. For someone who wants a point made but might find it difficult to articulate, having a lawyer speak for them can be a relief. There will often be regular break-outs for lawyer and client to discuss progress so far, any likely points of compromise, and legal advice to keep discussions within appropriate parameters. The lawyers can also repeatedly stress-test in real time whether a client has thought about this or that now and in the future as discussions unfold. Round table discussions can cover living arrangements, children arrangements, asset division, future planning, and whatever else is important to the couple.

If a couple want to formalise round table working, likely because there is a lack of trust between them, working collaboratively may be suitable. Collaborative law is a practice that requires a couple and their lawyers to sign a participation agreement. This is a contractual document that commits the couple to working round table and specifically discourages threats of litigation during negotiations. If either of the couple wish to withdraw from the collaborative process, each must discharge their lawyers and start afresh. This requirement keeps a couple focused on the discussions not least because changing lawyers halfway through can be expensive, can cause delay and is unnecessary if in all other respects the client and lawyer are working well together.

It can be seen therefore that working round table is not just for couples who are still amicable. Some couples can feel very antagonised towards one another, but, if there is common ground in wanting to avoid court, reduce expense and protect the children, round table discussions with lawyers present (hurrah!) might be just the ticket.