Bridget Garrood – Senior Consultant Solicitor – Divorce/ Finance/ LGBT+ Specialist
What is Collaborative Family Law?
Collaborative Law is sort of a cross between Mediation and traditional Solicitor/Solicitor meetings (Round table meetings)
The key feature is that the couple sign a contract agreeing to resolve all issues from their separation/divorce through Collaborative Family Law, through courteous and constructive negotiation. All agree that a negotiated outcome will be achieved, without going to Court.
If the Collaborative Family Law Process breaks down, the couple can still go to Court, but they have to find new Lawyers, and essentially have to do everything from scratch. This only happens in exceptional cases. There are ways to get around impasse, so don’t let this small risk put you off.
With collaborative law process, each person appoints their own collaboratively trained Solicitor.
The separating couple and their Solicitors sign an agreement that commits them all to trying to resolve the issues without going to court. This is called the “participation agreement”. In fact the agreement prevents the Solicitors from representing their clients in court if the collaborative process breaks down.
Fiona Griffin – Senior Consultant Solicitor – Divorce/ Finance Specialist
This means that everybody is absolutely committed to finding the best solutions by agreement, rather than through court proceedings.
The Solicitors avoid sending letters between sessions.
If any extra information is needed, then it is agreed how this is best to be obtained.
Other professionals can be brought in if needed, such as financial planners, Mediators, child consultants.
Everyone works together as a team to find a solution acceptable to both clients.
The advantages of a Collaborative Process over Mediation
Collaborative clients will feel better supported.
Their lawyer will be with them at all meetings. If the other person is more used to attending professional meetings or has a tendency to be overbearing this can leave the other person feeling more vulnerable and perhaps more inclined to agree to things that they are not so sure about.
In a collaborative process – they are able to rely on the support and assistance of their collaborative lawyer – who will also be able to do much of the talking.
Legal advice is given as it is needed.
In a collaborative process the solicitors will discuss relevant legal issues openly and constructively.
It is easier for the couple to understand all sides of an issue, and then make informed decisions.
The discussions and advice giving in a collaborative process will be very open (but confidential within the collaborative process). This is in contrast with mediation; legal advice is obtained between meetings.
It is not always easy for a client who is in mediation to present what might be quite a complicated or nuanced legal position effectively within the discussions that take place during mediation.
If lawyers attend mediation with their clients (which can sometimes happen) – each team of lawyer and client will normally be in a different room from the other lawyer and client – and the process becomes a more long-winded shuttle. This loses the benefit of mediation – which is talking to each other (with assistance).
Collaborative law is more able to deal with complex financial cases
In our view collaborative law is much more able to deal with complex financial issues in a constructive way.
Ian Walker – Solicitor/ Mediator/ Arbitrator/ Managing Director
This is because it is the norm within collaborative practice to bring in relevant third party professionals such as financial planners or accountants. Including such relevant professionals speeds up the process and enables there to be a much more problem-solving dynamic.
The choice is less clear-cut when considering children issues
The choice between a collaborative process and mediation is less clear-cut when considering child arrangements.
Often disagreements about child arrangements are more practical than involving complicated legal problems.
This said – if no agreement is reached – then the ultimate way to achieve resolution is to ask a court to make a decision about what arrangements should take place. When a disagreement proceeds to court it very much becomes a legal problem. Legal advice is recommended if the case goes to court.
If parents are reasonably comfortable talking to each other (with the assistance of a mediator), and are both committed to working out improvements to the arrangements together over a process of several meetings, (which will normally include trying different things), then mediation can work very well.
Collaborative law can be a better process if parents are not so comfortable discussing the arrangements and negotiating with each other and will benefit from the support of a lawyer who is a professional negotiator.
Also, with the collaborative process, there is the option of including a child neutral/family consultant. This will be a professional who is used to working with families and children. They may be from a social work or similar background.
The child neutral/family consultant will be able to meet with and work with the family between collaborative meetings. This means that progress can be made in a less pressured way and support and guidance can be provided by the family consultant – which can assist everyone making positive changes.
The mediator is not able to advise
The mediator is not able to give legal advice.
The mediator can give information of a legal nature. The Mediator can tell their mediation clients if they are proposing a settlement which is not one which a court would consider to be reasonable.
However, the mediator cannot tell their mediation clients what they should do. This means that sometimes couples who are in mediation and who are very good at saying no to each other, can struggle to say yes, when a very sensible proposal is on the table.
In contrast, with a collaborative process, the collaborative lawyers can and will express a view and can assist their clients to compromise and to reach an outcome which both lawyers are satisfied is reasonable and in their client’s interests.
Hidden costs within mediation
Whilst mediation may on the face of it be a cheaper process – there are hidden costs.
These include seeking legal advice between mediation meetings and instructing the lawyers to formalise financial proposals into a financial order.
The mediator will normally produce a final document called a Memorandum of Understanding. This is not a court order.
Lawyers will need to redraft the memorandum into a court order (which will involve some duplication of work).
It is not unknown for agreements reached in mediation to unravel at the drafting stage – when the lawyers disagree over drafting points.
The mediated proposals may be expressed in quite a broad way. Preparing a legal document and looking at minute detail can uncover significant problems. These might have been overlooked or brushed over in the discussions within mediation (particularly if the mediator is not a practising lawyer).
Is collaborative the right process for you?
Some people are put off by the idea that if a solution cannot be found, that they have to find a new solicitor. This anxiety is understandable, but the whole point is that for it to work, everyone has to be committed to finding a solution together.
When we meet a new client we will discuss with them which process will best assist them to resolve their dispute.
Because the Solicitors are involved at every stage, this can be a less stressful process for clients than Mediation; however it also tends to be more expensive than mediation. It is perhaps better equipped to deal with financial cases, and certainly more complicated financial cases.
Sometimes clients like to have a joint meeting before signing the participation agreement to get a better idea of whether it will work for them. This can be a good idea.
A good working relationship between the Solicitors is a key component to the success of the Collaborative Family Law Process. Collaborative Family Law is governed by Resolution. Ian Walker has practiced in Devon for over 20 years and has served on the Committee of Devon Resolution for 14 years including as the elected Chair and Treasurer.
As Solicitors, we know each other. Have confidence that we will make it work for you.
Not just for divorce
Collaborative Law is not just for divorce. It can also be helpful when a couple are considering having a Prenuptial Agreement. This is because different advice can be shared and the couple can be assisted in making the right decision for them, together.
It will also work to resolve disagreements between separating couples who have not been married.
Collaborative Family Law in Devon and Somerset
Collaborative practitioners are required to meet at least four times a year to share their experience and to discuss together how they can deal with cases better. These groups are known as PODs. These forums also assist collaborative lawyers to get to know each other better – which will benefit their clients when they work together in a collaborative process.
Our collaborative lawyers, Lauren Preedy, Bridget Garrood, Ian Walker and Fiona Griffin actively participate in the Exeter/Devon, East Devon and the Somerset collaborative law pods. Ian was previously a member of the Plymouth pod and still keeps in touch with its members.
Through our involvement with Resolution, we also know and can work with collaborative lawyers across England and Wales. (Ian is long-standing Chair of the Devon region of Resolution. B Lauren is Chair and Fiona is a member of the Somerset Resolution committee. Ian is also a member of Resolution’s national Dispute Resolution Committee. We have been in practice for a long time and have moved in progressive practice circles for a long time – so we know progressive family law practitioners across England and Wales.
Can a collaborative process take place if we live a long way apart?
We wouldn’t recommend a collaborative process taking place through Skype or similar. However, the number and purpose of meetings can be carefully managed – so it is quite plausible for a collaborative process to take place with a collaborative law client living a long distance apart – with meetings taking place in between (for example London) or alternating between locations.
Whilst distance will add to cost – there would still be a much more productive process than an alternative of going to court.