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COLLABORATIVE LAW

 

1. What is Collaborative Family Law?

• It is a process for resolving issues arising out of separation, divorce and the dissolution of civil partnership. It is an alternative to both litigation and mediation.
• In the process each person retains their own collaborative solicitor whose role it is to settle their case.
• Negotiations take place in four-way meetings that both clients and solicitors attend. Everyone agrees to work together to find solutions to suit the needs and interests of the individual clients.
• The solicitors give legal advice to their own client and support them throughout the process and in the joint meetings. Everyone has the opportunity to contribute to the joint meetings and the parties commit to an open and honest exchange of financial and other information. The joint meetings replace the tactical bargaining backed by threats of court, which can be a feature of conventional practice.
• Essential to the process is the commitment from both parties to refrain from making an application to the court or threatening to do so. If this happens then the process terminates. Then the solicitors acting for the parties are not permitted to act for them in subsequent court proceedings. This means that the parties have to engage new solicitors. There is therefore a strong incentive for both the individual clients and their solicitors to make the process work.

2. Is the process only for divorce?

• No, it can be used to resolve other family issues. Parties may be separating but not want to divorce. An unmarried couple may need to resolve what has happened to a jointly owned home. There could be issues relating to children, such as the arrangements for the children to see the parent they do not normally live with. Issues can arise about where children are to live, their schooling or other matters. All of these issues are suited to the collaborative process.

3. What is the difference between the collaborative process and mediation?

• In mediation there is one neutral mediator who helps the parties try to settle their case. No legal advice is given by the mediator. Therefore parties need to take their own legal advice from their individual solicitor in between the mediation sessions. Sometimes this is not a problem, but in other cases such as where there are complicated issues such as pensions, clients might find it difficult to assimilate the advice given and use this in their negotiation.
• The collaborative process was designed to deal with this whilst maintaining the same commitment to settlement. Each side has legal advice and advocacy built in at all times during the process. If one party lacks negotiating skill or financial understanding, or is emotionally upset or angry, the playing field is levelled by the direct participation of the skilled advocate. If one party is being unreasonable then it is the job of their solicitor to work with them to ensure that the process stays positive and productive.
• In some cases mediation can still be the best option. If this is the case we can recommend an experienced local mediation service. We can still act for you in a traditional way by giving legal advice during the course of the mediation and dealing with any court paperwork at the end of this.
• In some cases the collaborative process and mediation can work together. Some parties like to use the collaborative process to resolve the financial, property and pension issues whilst discussing matters relating to the children with a mediator or family counsellor. The collaborative lawyer and mediator/counsellor will support each other’s roles.

4. How is the collaborative process different from the traditional adversarial divorce process?

• In the collaborative process parties always agree to participate in an open and honest exchange of financial and other information.
• Both parties insulate their children from their disputes and should there be any issues as to where the children are to live or their contact with the non-resident parent, then parties can avoid the court evaluation process.
• Parties in the collaborative process will aim to use joint property valuers, accountants and pension advisors and specialists in child related matters. Whilst the court also now encourage the use of joint experts in litigation the adversarial element remains with the court process.
• In the collaborative process the respectful, creative effort to meet the legitimate needs of both parties replaces tactical bargaining backed by threats of litigation.
• Parties in traditional litigation can be disadvantaged by lack of funds. In the collaborative process there is discussion at the outset as to how fees are to be met by the parties.

5. What kind of information and documents are available in the collaborative process negotiations?

• Both sides sign a binding agreement in which they commit to disclosing all their finances and all relevant supporting documentation and information. There will be a minimum level of financial information that will always be required. Beyond this it is for the parties and solicitors to discuss what additional information is needed in each case.

6. What happens if one side or the other does not make full disclosure of their finances, or is dishonest in some way, or misuses the collaborative process to take advantage of the other party?

• This can happen. There are no guarantees that your rights will be protected if a participant in the collaborative process acts in bad faith. Similarly there are no guarantees in conventional legal representation. What is different about the collaborative process is that the collaborative agreement requires that a solicitor must withdraw upon becoming aware that his or her client is being dishonest or participating in the process in bad faith.
• For instance, if documents are altered or withheld, or if a client is deliberately delaying matters for economic or other gain, the solicitor will withdraw and will not continue to represent the client. The same is true if the client fails to keep agreements made during the course of the negotiations.

7. How do I know if it safe for me to work in the collaborative process?

• The collaborative process does not guarantee that all the assets and income will be disclosed any more than the conventional litigation process can guarantee this. In the end a dishonest person who works very hard to conceal money can sometimes succeed because the time and expense involved in investigating concealed assets can be high and the results uncertain. However, far greater efforts to try to track down concealed assets and income can be expected in convention litigation than in collaborative law, which relies on voluntary disclosure.
• You are generally the best judge of your spouse or partner's basic honesty. If your spouse or partner is unusually secretive about financial issues or if their finances are very complex in the sense that assets could be hidden perhaps abroad or elsewhere, then your spouse or partner may not be a good candidate for the collaborative process. However if you have confidence in his or her basic honesty then the process may well be a good choice for you. Ultimately the choice is yours.

8. Is the collaborative process the best choice for me?

• It is not suitable for every client (or every solicitor) but it is well worth considering if some or all of these are true for you:
• You want a civilised, respectful resolution of the issues.
• You hope to remain friends with your spouse down the road.
• You and your spouse will be co-parenting children together and you want the best co-parenting relationship possible.
• You want to protect your children from the harm associated with protracted litigation between parents in court.
• You and your spouse have a circle of friends or extended family in common with whom you both hope to remain connected.
• You have ethical or spiritual beliefs that place a high value on taking personal responsibility for handling conflicts with integrity.
• You value control and autonomous decision-making and do not want to hand over decisions about your finances or children to a judge, who is in effect a stranger.
• You recognise the restricted range of outcomes and what is sometimes seen as "rough justice" available in the court system and want a more creative and individual range of choices for resolving your issues.
• You place as much or more value on the relationships that will exist in your restructured family situation as you place on obtaining the maximum possible amount of money for yourself.
• You understand that conflict resolution with integrity involves not only achieving your own goals, but also finding a way to achieve the reasonable goals of the other person.
• You and your partner will commit your intelligence and energy towards creative problem solving rather than towards recriminations or revenge - fixing the problem rather than fixing the blame.

9. My solicitor says that they settle most of their cases. How is collaborative law different from what they do when they settle cases using conventional representation?

• The agreement reached under the collaborative process will not have been reached under a spoken or unspoken threat of court proceedings.
• Court cases are sometimes settled "at the door of the court". By that time a great deal of money has been spent and much emotional energy expended. Settlements are reached in the shadow of a court hearing and are shaped by what the solicitors believe the judge in the case is likely to do. Even if court proceedings have not yet been started, settlement may be reached under conditions of considerable tension and anxiety.
• The collaborative process is geared from day one to make it possible for respectful collective problem solving. It is potentially quicker, less costly, more creative, less stressful and overall more satisfying in its results than is the case in conventional settlement negotiations.

10. Why is the collaborative process such an effective settlement process?

• Because the process works in a completely different way, the solicitors can approach it in a different frame of mind. In conventional practice solicitors may respond to their client’s expectations that they will push for the best possible financial settlement, despite the human and financial cost. Collaborative solicitors seek a balance between helping their clients achieve their objectives for themselves whilst keeping in mind all the implications of the settlement.
• Collaborative solicitors do not act as hired guns. They do not take advantage of mistakes inadvertently made by the other side. They do not threaten court proceedings or focus on the negative. They expect and encourage problem solving in good faith from their own clients and themselves.
• Collaborative solicitors tend to work with other solicitors who they trust. They still have a duty of care and professional responsibility to their own individual client, but they also acknowledge that the best way they can serve the interests of their client is to behave with and demand integrity from themselves, their client and the other participants in the process.
• The collaborative process offers a greater potential for creative problem solving than does either mediation or litigation, in that only the process puts two solicitors in the same room pulling in the same direction with both clients to solve the same list of problems. Solicitors excel at problem solving, but in conventional litigation they generally pull in opposite directions. No matter how good the solicitors may be for their own clients, they cannot succeed as collaborative solicitors unless they can at the same time find solutions to the other party’s problems that both clients find satisfactory. This is a special characteristic of the collaborative process that is found in no other dispute resolution process.

11. What if my spouse or partner chooses a solicitor who does not know about the collaborative process?

• If you and your spouse retain two solicitors who have trained as and practice as collaborative lawyers then you will have the option to use the collaborative process or traditional representation or mediation. If not then your options will be limited.
• The collaborative process demands special skills from the solicitors, skills in guiding negotiations and in managing conflict. Collaborative solicitors study and practice these skills in addition to the skills they employ when acting as conventional adversarial solicitors.
• We can give you a list of other collaborative family solicitors in the area.

12. Why is it so important to sign on formally to the official collaborative process agreement? Why is it not possible for you to work collaboratively with the other solicitor but still go to court if the process does not work?

• The special power that the collaborative process has to spark creative conflict resolution seems to happen only when the solicitors and their clients are all pulling together in the same direction to solve the same problems in the same way. If the solicitors can still consider unilateral resort to the courts as a fallback option their thought processes do not become transformed and their creativity can be crippled by the availability of the court process. Only when everyone knows that it is up to the four of them and only the four of them to think their way to a solution, or else the process fails, does the special creativity of the collaborative process become triggered. The moment when each person realises that solving the clients' problems is the responsibility of all four participants is the moment when magic can happen.
• The collaborative process is not just two solicitors who like each other or agree to behave "nicely". It is a special technique that demands particular talents and procedures in order to work as promised.
• Any effort by parties and their solicitors to resolve disputes co-operatively and outside court is to be encouraged, but only the collaborative process is the collaborative process.

13. If I engage you as my collaborative solicitor how does my spouse find a collaborative solicitors?

• We can provide a list of collaborative solicitors and indicate which ones we have worked with on previous cases.

14. How do I enlist my spouse in the process?

• Talk with your spouse and see whether there is a shared commitment to engage in the process. Encourage your spouse to consult a solicitor who has experience and training in the collaborative process so that they have the option available to them.

15. How long will my divorce take if I use the collaborative process?

• The collaborative process is flexible and can expand or contract to meet your specific needs. Most people need from four to seven of the four-way negotiating meetings to resolve all issues, although some divorces take less time and some more. These meetings can be spaced with long intervals between, or close together, depending on the particular needs of the clients.
• Once the issues are resolved the solicitors will complete the paperwork needed by the court. In some cases clients may agree to start the divorce process or dissolution process during the collaborative process. The reason for this is that it can take several months before the decree nisi and subsequently the decree absolute are granted. An order setting out the financial arrangements cannot be sent to the court for approval until the decree nisi has been granted. However issues relating to the finances and property and children would still be discussed within the collaborative process, with paperwork sent to the court at the end of the process or after the decree nisi, whichever is the later.

16. How expensive is the collaborative process?

• We charge by the hour for the collaborative process as we do for conventional representation. This is the practise amongst most solicitors.
• Please see website section on fees for our current hourly rate.
• It is not possible to predict at the outset precisely what the total cost will be because every case is different. Your issues may be simple or complex. You and your spouse may have already reached agreement on some of the issues. You may be very precise or very casual in your approach to problems. You and your partner may be at very different emotional stages and coming to terms with separating from one another.
• Our experience to date is that whilst not cheap, fees for the collaborative process are less than the cost of resolving issues through the courts, particularly where there are several hearings and the court process goes to a final hearing.

17. Is not mediation cheaper because only one neutral, instead of two solicitors, has to be paid?

• No, mediation is not necessarily cheaper if one takes into account the cost of each party’s solicitor in addition to the mediator. Most mediators strongly urge that independent solicitors for each party advise their client during the process and then review and approve the mediated agreement. If the solicitors have not been part of the negotiation they may at a late stage draw attention to points of the agreement that need to be reviewed or perfected and this can result in a new phase of negotiations or occasionally litigation.
• Having said that, if two calm and reasonable people whose issues are not complex go to a mediator they can usually achieve agreement efficiently and often at low cost. We will discuss with you if mediation might be a better option in your case and if appropriate will be able to recommend an experienced local mediation service.

18. How does the cost of the collaborative process compare with the cost of litigation?

• Litigation is the most expensive way of resolving a dispute.
• The collaborative process is likely to cost substantially less than the cost of litigation that proceeds to a final hearing.
• It should be borne in mind that litigation goes through several stages and court hearings. If litigation settles at an early stage then the cost of this may be comparable with the collaborative process.

19. How can I get further information?

• We will be happy to give you any further information that you need and help you decide if the collaborative process is suitable for your case.
• We can give you further information on the process by telephone at no cost.