What is Collaborative Family Law?
In short Collaborative family law is an excellent process to resolve the issues arising out of separation and divorce.
The features of collaborative family law
the features of collaborative family law are that each of the couple instructs a specially trained collaborative family lawyer.
Each of the couple and their collaborative family lawyer will then sign a contract called the participation agreement. This is a commitment to resolve the issues that need to be resolved in connection with their separation and divorce (normally finance issues and child arrangement issues) through a series of face-to-face meetings.
The couple and their collaborative family lawyer make a commitment in the participation agreement not to embark upon adversarial and divisive court proceedings.
The collaborative family participation agreement
The collaborative family law contract – the participation agreement – contains a clause which disqualifies the lawyers from acting for the couple if either or both decide to abandon the collaborative family law process. The disqualification clause means that if collaborative family law fails, then the couple will need to find new lawyers to represent them in a court process.
It is very rare for the disqualification clause to be invoked because the vast majority of collaborative family law cases achieve an amicable outcome. (There is also a small cheat in that if there was an issue which was contentious and which could not be resolved through discussion and sensible negotiation – then it is possible for everyone to instruct a private judge called an arbitrator to resolve that issue – which enables the collaborative process to conclude amicably. There is more on our website about arbitration – but couples choosing to instruct an arbitrator make a legally binding decision on a discrete issue is very different making an application and forcing the other through a court process).
The other features of collaborative family law
The other features are:
- the collaborative agreement confirms that the couple 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 (collaborative family lawyers) are present (this means that each of the couple are well supported)
- letter writing will generally be kept to a minimum
- the collaborative family law process involves a holistic approach where the couple 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 family law process the couple will:
- understand the general process options through litigation, mediation and arbitration
- positively choose the collaborative family law 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 former 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
The role of the collaborative family lawyer
A collaborative family lawyer must be collaboratively trained and will:
- discuss not only the factual history 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
We are very fortunate to have two experienced collaborative family lawyers in Ian Walker and Fiona Griffin.
In fact it was Ian Walker was responsible for arranging for Resolution (who oversee the collaborative family law process in England and Wales) to run the original collaborative family law training in 2006 – when the original core of Devon and Somerset collaborative family lawyers were trained.
We are happy to work with Collaborative family lawyers in Devon and Somerset and elsewhere. The numbers of collaborative family lawyers in Devon and Somerset are quite small. This means that most of us know each other well and have trust and confidence in working with each other.
Having a good working relationship between Collaborative Family Lawyers in Devon and Somerset is important. If we don’t have confidence that we can work with the other collaborative family lawyer, then our client is not going to have confidence that collaborative family law will work for them.
Choosing Collaborative Family Law
It is fundamentally important that the choice of a client to enter a collaborative family law process is an informed one.
Ian Walker says:
I am an experienced family mediator (having trained in 1996) family solicitor (qualifying in 1992) and collaborative family lawyer (since 2006) and I am very familiar with the pros and cons of court based and non-court based dispute resolution.
Going to court and saying hurtful things about the other parent with both spending thousands of pounds rarely helped anyone get on better with each other. Where a couple have children – successful talking dispute resolution is much better for the family – not only because parents are better able to maintain an ongoing relationship for the benefit of their children – but also because they are acting as role models in showing their children that they are able to put their own emotions to one side and reach sensible solutions in a sensible way. (Talking solutions are also better for couples without children – because discussing and reaching agreements is in the greater scheme of things a much less stressful way of ending one chapter in life before moving onto the next, with less baggage in tow).
In my own view family mediation is normally the best option for resolving issues concerning child arrangements.
However, mediation can struggle as issues become more complicated – particularly with regard to financial matters. A problem with mediation is that a couple can become used to saying no to each other and they become stuck. They can find it difficult to say yes – even where something reasonable is on the table. Sometimes clients struggle in mediation because they don’t have sufficient support.
For clients who need that extra support and for financial cases – and particularly as financial cases become more complex – my own view is that collaborative law offers a better alternative. Collaborative family law delivers many of the gains from mediation – but with less stress.
Collaborative family law normally proceeds through a series of four-way meetings (sometimes five way meetings if there is a neutral – such as a financial neutral or a child neutral). There do not need to be an excessive number of these meetings. The first meeting will normally take place quite quickly after the clients have instructed their solicitors – in order to capture the early momentum. A timetable will then be agreed which will deal with matters such as financial disclosure and finding out the information needed to enable the collaborative process to then move on to finding reasonable solutions.
Because collaborative family law is very focused upon working together in a problem-solving way, integrating a financial neutral (a financial adviser who has had training about collaborative family law) can be extremely helpful – lawyers can’t give financial advice – financial advisers aren’t always clear/focused about how their advice sits against the legal negotiation – therefore including a neutral financial adviser into the legal discussion really helps there being a focused discussion on what realistic solutions are.
The final four-way meeting in a financial collaborative family law case will normally involve ironing out drafting points in a draft financial order and agreeing the other paperwork which need to be sent to the court for the financial order to be approved.
Long letters going backwards and forwards between solicitors can be expensive and can add to division – and collaborative law largely cuts this out.
Collaborative family lawyers in Devon and Somerset
In Devon and Somerset we are lucky to have an established group family lawyers who we are happy to work with. Collaborative family law is a different way of working – but for the right couples to can provide an extremely good process option.
For more information from one of our family lawyers in Devon and Somerset, please contact Ian Walker or Fiona Griffin. We are able to assist clients across our office network in Devon and Somerset including in Exeter, Honiton, Torquay, Taunton, Weston-Super-Mare and Yeovil.