Collaborative family law is a new approach to separation and divorce, established by specialist family lawyers from all across the world. Specially trained family lawyers can now, for the first time in the UK, help families manage their separation in a more dignified and respectfully way.
Collaborative Lawyers are trained to have a completely different state of mind about what their job is than Lawyers generally bring to their work. Traditionally, lawyers are trained with the objective of get the best result for their client alone. Where families are concerned however, much more is at stake then the immediate consequence of getting the best or biggest settlement. The personal and emotional costs together with wider family implications can be just as, if not more important, than getting the “best” deal.
Collaborative Lawyers are dedicated to helping their clients achieve their highest intentions for themselves, their children and extended families. Relationship breakdown will always involve financial and emotional costs. The benefits of collaborative family law will help minimise those costs for all concerned.
Collaborative family lawyers and their clients agree in writing to reach settlement without “going to court”. They agree to work together to resolve all issues, including children and financial issues arising out of the separation. In addition, they may enlist other experts, such as child specialists, parenting and personal counsellors, as part of the same team to resolve issues.
Utilising their knowledge of the law and skills in representation, negotiation and problem-solving, collaborative family lawyers help their clients shape agreements that are as unique and individual as the couple concerned. All negotiations take place in “4-way around the same table” settlement meetings that both spouses and Lawyers attend. Four creative minds work together to devise individualized, personal, settlements.
- You and your partner agree with your lawyers to resolve issues without going to court
- Settlement is reached in ‘4 way’ face to face meetings (2 of you and 2 lawyers)
- All information and disclosure is provided in the collaborative process
- You remain in control of the process but with your lawyers there throughout for legal advice and guidance
1. What is the goal of collaborative family law?
To assist you and your spouse/partner to resolve all matters arising out of your separation in a dignified and respectful way for the benefit of the whole family.
2. How does collaborative family law work?
- Both you and your partner retain separate specially trained lawyers to assist you in resolving issues without going to court.
- Your collaborative family lawyer acts for you, providing legal advice and guidance throughout the process, but working with your partner and his/her lawyer as part of a team to help achieve settlement.
- You, your partner and your lawyers agree to work together in a respectful, honest and dignified way to try and reach settlement without threatening to go to court. All sign an agreement disqualifying your collaborative lawyers from representing you at court if the collaborative process breaks down. Neither of the lawyers, nor their respective firms can then act for you although they will still be bound by confidentiality.
- Issues are discussed and resolved in ‘4 way’ face to face meetings between you, your partner and your lawyers. Settlement discussions take place in your presence which helps ensure that you and your partner remain in charge of the process. The process helps improve future communication, which can be particularly important when you have children and extended families who remain in contact with one another.
- You and your partner give honest, full and frank disclosure and all financial information and documents are provided within the process.
- Correspondence between lawyers is discouraged, thereby keeping costs and acrimony to a minimum.
- Discussions focus on the needs and interests of you, your partner and the children.
- Meetings are arranged at the start of the process without you having to wait for court dates. Provided all the participants enter the process in good faith, the process is faster, and much less acrimonious.
- You and the lawyers can work as part of a group of professionals, including counsellors, mediators and child and financial specialists to draw on the skills of other professionals to assist you and your partner in the process.
- For issues requiring expert opinions (for example accountants and business specialists ) the collaborative team will normally jointly instruct independent consultants.
- Fundamentally, you and your partner remain in control, working together.
3. Is collaborative family law the best choice for me?
- Collaborative family law is not for everyone, but it is worth considering if some of the following is important for you.
- You want a dignified, respectfully non-aggressive resolution of the issues.
- You and your partner have children and wish to co-parent, or reach an agreement with their needs and interests at the forefront.
- You want to protect your children from the emotional harm, which can result from court litigation or simply wish to avoid the animosity that can be generated by going to court.
- You would like to keep open the possibility of friendship or a positive relationship with your partner in the future.
- You and your partner have extended family and a number of friends to whom you would both wish to remain in contact in the future.
- You value retaining control over decisions about restructuring your financial arrangements or arrangements in relation to the children.
- You do not wish to “hand over” such decision making to either a lawyer or to a complete stranger (a judge).
- You and your partner will commit your intelligence and energy toward creative problem solving rather than toward recriminations or revenge Your aim is to fix the problem, rather than fixing blame.
- You understand that conflict resolution with integrity involves not only achieving your own goals but finding a way to achieve the reasonable goals of the other person.
4. What is the difference between collaborative law and mediation?
- Collaborative Law is very different from Mediation because in Mediation there is one neutral professional who helps the disputing parties to try to settle their case.
- Mediation can be challenging where the parties are not on a level playing field with one another. If one side or the other becomes unreasonable or stubborn, or lacks negotiating skill, or is emotionally distraught, the mediation can become unbalanced.
- In mediation the mediator is prohibited from giving either of you legal advice. The mediator cannot assist you in advocating your position. A mediator is neutral and cannot give you help alone, to express your views, feelings or wishes.
- Each person has legal advice and advocacy built in at all times during the process. Even if one person 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 advocates.
- Any settlement discussed during mediation is only binding once each of you have had the opportunity of taking separate legal advice and have transferred the agreement into a separate consent order of the court. The mediator cannot prepare the court documents for you nor finalise the process.
- Lawyers are rarely present during mediation sessions, and their advice may be given too late to assist in the process.
- In collaborative family law, you each have your own lawyer throughout the process advising you and advocating on your behalf. If you or your partner lack negotiation skills or financial understanding or feel vulnerable, collaborative family law could be preferable to mediation.
- Provided agreement is reached your collaborative lawyer can act for you in any necessary court proceedings, or other transactions to put the agreement reached into effect.
- Mediators may still have a role in the collaborative process if you and your partner wish to consult a mediator regarding an issue.
5. What kind of information and documents do I have to provide in collaborative family law negotiations?
- You and your partner must sign a binding agreement to provide full and frank disclosure of all documents and information that relate to the issues, entirely and early on in the process.
- Everyone works together with an open agenda and full understanding of the facts and issues.
6. What happens if my partner/spouse does not give full and frank financial disclosure or undertake the collaborative family law process in good faith?
- This can of course happen as it does in mediation and in conventional court proceedings. Under the terms of the collaborative agreement, the lawyer must withdraw from acting for their client if he/she has withheld or misrepresented information intentionally or is participating in the process in bad faith. Likewise, it is open to your collaborative family lawyer to advise you to withdraw from the process if they do not consider that your partner (or indeed their lawyer) is keeping to the terms of the agreement.
- If you consider that your partner is unlikely to be honest during the collaborative process, is likely to lie about his or her financial affairs, then collaborative family law is unlikely to be a good choice for you.
7. What if some time after issuing a settlement agreement in collaborative law process, I discover that my partner has failed to disclose relevant information?
- The settlement agreement reached during the collaborative family law process is no different from any other negotiated settlement. If the outcome of the settlement would have been different if such information had been available, then it is open to you to seek to overturn the agreement, even it is has been made into a court order.
8. Why can’t you go to court if the process doesn’t work but each of you agree to retain your existing lawyers?
- The reason that collaborative family law has been successful and highly developed is the fact that the lawyers are disqualified from acting for the clients should collaboration fail. The disqualification agreement means that all the parties, including the lawyers and clients, are attempting to achieve settlement without threatening or being subject to the threat of court proceedings when things become difficult.
- You are collaborating without the background of potential court litigation, and lawyers work together in assisting you to reach settlement.
- By agreeing at the outset not to go to court, you, your partner and the lawyers can be encouraged to reach creative settlements, with you and your family’s particular interests at the forefront of any settlement proposals.