Trelfa & Co Solicitors

COLLABORATIVE LAW ON SEPARATION AND DIVORCE

Some common questions about Collaborative Law:

1. What is Collaborative Law?

• Collaborative Law is a new process for resolving issues and disputes arising out of separation and divorce. It is an alternative to both litigation and mediation.
• In Collaborative Law each person retains his or her own solicitor trained in collaborative law whose role is to help them settle the case. All negotiations take place in “four-way” settlement meetings that both clients and solicitors attend. The solicitors and clients all agree to work together to devise 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 information. The joint meetings replace the tactical bargaining backed by threats of litigation, which can be a feature of conventional means of resolving disputes.
• An essential aspect of Collaborative Law is that both parties commit to refrain from making an application to the court in respect of the issues or threatening to do so. If one party decides that they wish to apply to the court then the collaborative law process terminates. However the solicitors acting for the parties in the process are not permitted to act for their client in subsequent court proceedings. This means that the parties have to engage new solicitors. There is therefore a strong incentive for both the parties themselves and their solicitors to make the process work. The solicitors must guide the process to settlement or withdraw from further participation.

2. Is Collaborative Law only for divorce?

• Collaborative Law can be used to resolve other family issues. Parties may be separating but not wish to divorce. An unmarried couple may need to resolve what is to happen to a jointly owned home. There could be issues relating to children, such as the arrangements for the non-resident parent to see his or her children. Issues can also arise about where children are to live, their schooling or other matters. All of these issues are suited to the Collaborative Law process.

3. What is the difference between Collaborative Law and Mediation?

• In mediation there is one neutral mediator who helps the disputing parties try to settle their case. Mediation can be challenging where parties are not on a level playing field with one another, because the mediator cannot give either party legal advice and cannot help either side advocate its position. Most parties will need to take legal advice from their solicitor between the mediation sessions. Some clients find it difficult to assimilate the advice given, particularly in complicated areas such as pensions, which they must do if they are to negotiate sensibly within the mediation process.
• Collaborative Law was designed to deal with these potential problems whilst maintaining the same commitment to settlement as the sole agenda. Each side has legal advice and advocacy built in at all times during the process. Even if one side or the other 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. It is the job of the solicitors to work with their own clients if the clients are being unreasonable to make sure that the process stays positive and productive.
• In some cases mediation may still be the best option and if this is the case we will be able to recommend a skilled local mediator. We will still be able to act for you in a conventional sense by giving legal advice during the course of the mediation and dealing with any court paperwork.

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

• In Collaborative Law all participate in an open, honest exchange of information. Neither party takes advantage of the miscalculations or mistakes or the other, but instead identifies and corrects them.
• In Collaborative Law both parties insulate their children from their disputes and, should there be any issues such as where the children are to live or how often they are to see the non-resident parent, then the parties can avoid the professional evaluation process.
• Both parties in Collaborative Law use joint property valuers, accountants, and pension advisors and specialists in child related matters instead of adversarial experts. It should be said in fairness that the court system now encourages the use of joint experts, although there often remains an adversarial element.
• In Collaborative Law a respectful, creative effort to meet the legitimate needs of both spouses replaces tactical bargaining backed by threats of litigation.
• In Collaborative Law the solicitors must guide the process to settlement or withdraw from further participation, unlike adversarial solicitors, who remain involved whether the case settles or goes to a final hearing.
• In Collaborative Law there is a general parity of payment to each of the solicitors so that neither parties’ representation is disadvantages vis-à-vis the other by lack of funds, a frequent problem in adversarial litigation.

5. What kind of information and documents are available in the Collaborative Law negotiations?

• Both sides sign a binding agreement to disclose fully and voluntarily and early in the process, all documents and information that relate to the issues. Both solicitors promote this. When dealing with financial issues there is a minimum level of 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 Law process to take advantage of the other party?

• That can happen. There are no guarantees that your rights will be protected if a participant in the Collaborative Law process acts in bad faith. Similarly there are no guarantees in conventional legal representation. What is different about Collaborative Law is that the collaborative agreement requires a solicitor to 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 solicitors have agreed in advance that they 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 negotiations.

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

The Collaborative Law process does not guarantee that all the assets and income will be disclosed any more than the conventional litigation process can guarantee that. 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 conventional litigation than in Collaborative Law, which relies upon voluntary disclosure.
• You are generally the best judge of your spouse or partner’s basic honesty. If, for example, he or she would lie on an income tax return then he or she is probably not a good candidate for a Collaborative Law divorce because the necessary honesty would be lacking. But if you have confidence in his or her basic honesty then the process may well be a good choice for you. The choice ultimately is yours.

8. Is Collaborative Law the best choice for me? It is not suitable for every client (or every solicitor) but it is worth considering if some or all of these are true for you:

• You want a civilised, respectful resolution of the issues.
• You would like to keep open the possibility with friendship 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 to whom you both want 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 privacy in your personal affairs and do not want details or your problems to be available in the court record - and on occasion in certain cases, publicly available.
• You value control and autonomous decision-making and do not want to hand over decisions about restructuring your financial and/or child rearing arrangements 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?

• There is often a difference between a settlement that is negotiated during the conventional litigation process and a settlement that takes place in the context of a Collaborative Law agreement that there will be no court proceedings or even the threat of court.
• Court cases may be 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, settlements may be reached under conditions of considerable tension and anxiety.
• Nothing can be more different from what happens in a typical Collaborative Law settlement. The process is geared from day one to make it possible for creative, respectful collective problem solving to happen. 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 Collaborative Law such an effective settlement process?

• Because the Collaborative Law process works in a completely different way, the solicitors can approach it in a different frame of mind. In conventional practise solicitors may respond to their clients’ expectations that they will push for the best possible financial settlement, despite the human and financial cost. Collaborative solicitors are dedicated to helping their clients achieve their highest objectives for themselves in their post-divorce restructured families.
• Collaborative solicitors do not act as hired guns, nor do they 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 the highest good faith problem solving behaviour 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 true best interests of their client is to behave with, and demand, the highest integrity from themselves, their clients and the other participants in the collaborative process.
• Collaborative Law offers a greater potential for creative problem solving than does either mediation or litigation, in that only Collaborative Law 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 parties’ problems that both clients find satisfactory. This is the special characteristic of Collaborative Law that is found in no other dispute resolution process.

11. What if my spouse or partner chooses a solicitor who does not know about Collaborative Law?

• You and your spouse will get the best results by retaining two solicitors who can show that they have committed to learning how to practise Collaborative Law by obtaining training as well as experience in this new way of helping clients through divorce.
• Collaborative Law demands special skills from the solicitors - skills in guiding negotiations and in managing conflict. Solicitors need to study and practise to learn these new sills in addition to the skills that they will employ when acting as conventional adversarial solicitors.
• There is currently poor coverage of collaborative solicitors in some areas, but many more solicitors are going through the training process and hopefully in time there will always be the opportunity to choose a collaborative solicitor if this is appropriate.

12. Why is it so important to sign on formally to the official Collaborative Law 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 Collaborative Law 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 fall back option, their thought processes do not become transformed and their creativity is actually 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 and the solicitors are out of the picture, does the special creativity of Collaborative Law 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.
• Collaborative Law is not just two solicitors who like each other or agree to “behave nicely”. It is a special technique that demands special 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 Collaborative Law is Collaborative Law.

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

• 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 collaborative, win-win conflict resolution. Share this information with your spouse. Encourage your spouse to consult a solicitor who has experience and training in Collaborative Law.

15. How long will my divorce take if I use Collaborative Law?

• The Collaborative Law 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 leading to dissolution of the marriage 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. However, issues relating to the finances and property and the children would be discussed within the Collaborative Law process and paperwork would not be filed at court in this connection until the end of the process.

16. How expensive is Collaborative Law?

• We charge by the hour for Collaborative Law 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 of complex. You and your spouse may have already reached agreement on most, or none of your 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 in coming to terms with separating from one another.
• Our experience to date is that Collaborative Law fees are substantially less than the cost of resolving issues through the courts.

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 negotiations they may be unhappy with the results of the mediation and a new phase of negotiations or even litigation may result.
• 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 recommend a mediator.

18. How does the cost of Collaborative Law compare with the cost of litigation?

• Litigation is, quite simply, the most expensive way of resolving a dispute.
• The Collaborative Law process is likely to cost less than half the cost of litigation that proceeds to a final hearing.

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 Collaborative Law is suitable for your case.
• We can give you further information by telephone at no cost.
• However, advice specific to your case would normally be given at an initial meeting, for which we charge our normal rates.