Collaborative Law

What is it?

Collaborative family law is so called because the lawyers and clients work together to sort things out. The aim is to achieve a fair resolution of the issues for everyone involved and in order to get there the solicitors work in a non-positional, non-confrontational way.

How does it work?

At the beginning of the process, you, your spouse or partner and both collaboratively trained lawyers sign an agreement, known as a participation agreement that they will not go to court to resolve matters. The effect is that if things can’t be worked out using collaborative law, both of you will have to get new lawyers if you want to take the dispute to court. In fact, most collaborative processes are successful.

As far as possible matters are dealt with at meetings, which controls legal costs. Where necessary, you can bring other experts into the collaborative law process, such as family consultants and financial experts.

Collaborative law is useful in a wide variety of circumstances but may not be appropriate or possible where there is little trust, if the couple are in the midst of a very acrimonious separation, or where there has been domestic abuse. It can work particularly well where financial and children’s arrangements are intertwined, as it allows all arrangements to be worked out together.

The collaborative process involves the instruction by each party of a collaborative lawyer and the entering into of a collaborative participation agreement. There are no adversarial court proceedings. The parties sign a disqualification clause indicating that if they are unable to agree matters and issue proceedings, they will dispense with the services of their current lawyers and instruct new lawyers. In addition:

• the collaborative agreement confirms that the parties will negotiate in good faith and in a transparent and open way

• the issues are often resolved in face-to-face meetings (called a four-way meeting) with both the parties and their solicitors present

• correspondence will generally be kept to a minimum

The collaborative process is a general holistic approach where the parties and their lawyers may also work with other professionals who are also collaboratively trained eg a financial neutral adviser, in a five-way meeting.

In a case suitable for the collaborative process the parties will:

• understand the general process options through litigation, mediation and arbitration

• positively choose the collaborative process by making an informed decision

• not be too positional

• understand that they need to keep an open mind when engaging in collaborative work and not talk only of their rights but rather of the family’s interests

• often talk about wanting to stay in touch/have a good relationship with their partner and also indicate that they would like to choose an option whereby they are divorcing in a respectful way and with dignity

• have a measure of goodwill to their former partner and be able to envisage sitting in a room together discussing issues

• understand that they will be an integral part of the client-driven process

• understand the disciplinary and holistic nature of the process

Role of collaborative solicitors

A collaborative solicitor must be collaboratively trained and will:

• discuss not only the factual matrix and legal situation with the client but also try to understand more of their client’s motivation and what works for them

• assist their client in preparing an agenda and managing it

• understand that there will be times when there may be conflict in the room and be able to manage it

• assist the parties in negotiations—the parties will often do much of the negotiation themselves

• organise/audit disclosure and give legal advice both inside and outside the four-way meetings

• prepare documentation including the final consent order with the appropriate recital indicating that the case has been dealt with on a collaborative basis

‘I found the use of Collaborative Law very helpful in that the difficult and stressful situation that we were dealing with was made less divisive and the resulting agreement being made a better starting point for our future’.