What is Collaborative Law?
How does the process work?
Is the process always effective?
Why sign up to the process?
What is the difference between the traditional adversarial divorce process and Collaborative Law?
What is the difference between Collaborative Law and Mediation?
Is the process safe for me?
My lawyer says she settles most of her cases. How is Collaborative Law different from what she does?
What if reach an agreement on almost everything but there is one point that remains outstanding? Does the process end?
How much does it cost?
How do I find a Collaborative lawyer?
How do I enlist my former partner in the process?
What if my former partner chooses a lawyer who does not know about Collaborative Law?
What is Collaborative Law?
Collaborative Law is a process whereby specialist lawyers are instructed by a couple whose relationship is breaking down to help them resolve the terms on which they are separating. Both lawyers and both clients sign a Collaborative Agreement at the outset to the effect that they will make every effort to achieve an amicable solution to their dispute. That agreement specifically states that if either client decides to go to Court, both lawyers will have to withdraw, in which circumstances the clients will need to instruct new solicitors.
Both the lawyers and clients work together as a team to attain the objective of the collaborative agreement.
How does the process work?
A preliminary meeting with take place when the principles of collaborative law are discussed and explained and a collaborative agreement is signed by all four parties.
Financial disclosure will then have to take place and both lawyers state their professional integrity on ensuring full and voluntary disclosure of all necessary information. If for example, it appears that one party has made an error during this process then there is a moral obligation upon the other party to point that out.
Thereafter there will be a number of roundtable discussions where lawyers and clients work through an agreed agenda. Prior to each meeting, clients will be assigned specific tasks relating to disclosure, valuation evidence and the like.
The objective is to agree a settlement which can then be incorporated into the terms of an application to be sent to the Court so that an Order can be made formalising the agreement. The process usually takes within 3 - 6 months and will involve between 4 and 10 roundtable meetings. There will of course be client/lawyer meetings as well but everything is done face to face rather than by way of correspondence.
Is the process always effective?
No, but experience shows that the process may offer a greater potential for creative problem solving than either mediation or conventional litigation. This is because both lawyers and clients are working to achieve the same objective namely a fair solution for the family. Lawyers tend to excel at solving problems but in conventional litigation there is a risk of them pulling in opposite directions. As collaborative lawyers they will fail unless they can find solutions to both parties’ problems that both clients find satisfactory.
The process is rather more flexible than traditional divorce proceedings because nobody is constrained by any limitation upon the powers of the Court to make an Order after a contested hearing. Most important of all, the uncertainty of outcome is removed because the process lies within the control of the team, rather than depending upon the views of a third party.
Why sign up to the process?
It is not suitable for every client particularly where there is a hidden agenda or where one party or indeed both parties find it difficult to adopt the philosophy behind the process, but you may find it appropriate because:-
a) You want a civilised outcome.
b) You want to retain good relations with your former partner.
c) You want to preserve a good relationship between the children and your former partner.
d) You want to remove uncertainty from the process in terms of the likely outcome.
e) You believe that you and your former partner will be committed to this process.
Do remember that it is essential that both parties can put their personal interests behind them with a view to achieving an amicable settlement that will benefit both of them. They must act sensibly, responsibly and unselfishly, being willing to make concessions from time to time which may be against their better judgement but will facilitate an overall settlement that is for the good of the family.
What is the difference between the traditional adversarial divorce process and Collaborative Law?
The crucial difference is the philosophy embodied in the Collaborative Agreement whereby all four individuals are working as a team to achieve settlement. All discussions are face to face: if there are any problems these must be identified whether or not that benefits the individual concerned: if there are valuation issues experts are instructed jointly. The process tends to be much quicker. The uncertainty of outcome is removed. Most important of all, if agreement can be reached it is likely that good relations between the parties will have been preserved for the benefit of the family.
What is the difference between Collaborative Law and Mediation?
In mediation a qualified Mediator encourages the parties to try to settle their case. It is a difficult process where, for example, if somebody appears to be acting unreasonably, lacks negotiating skills or is emotionally distraught. In mediation, if the Mediator tries to resolve such problems, he or she may be perceived by one side as being biased, whether or not that is so.
In Collaborative Law, each party has an adviser and so if there are problems of this nature, the lawyers have to work with their own clients to smooth things over. Furthermore, both clients have the benefit of the input of both lawyers.
Is the process safe for me?
Nobody can prevent somebody from acting in bad faith if they are set upon doing so. A dishonest person who works hard to conceal money can sometimes succeed because the costs of investigation can be prohibitively expensive. Sometimes someone is deliberately being difficult for the sake of it because of their feelings about the litigation process and large amounts of money can be spent in a fruitless search for assets.
You are the best judge of your former partner’s honesty. If you are confident about this and his or her ability to act honestly within the Collaborative process then it may be a good choice for you, but that choice is ultimately yours. You need to think about it carefully because an abortive Collaborative process will simply increase what can be heavy costs in any event.
My lawyer says she settles most of her cases. How is Collaborative Law different from what she does?
Collaborative Law encourages parties to negotiate constructively at an early stage. While many experienced practitioners adopt a "collaborative approach" they are constrained by a Court process. Often there is a reluctance on the part of the other party to enter into constructive negotiations prior to Court hearings. Some people can be very difficult about making voluntary disclosure.
You will probably find that the Collaborative process is much quicker than the orthodox route because usually people can be dissuaded from adopting entrenched positions, particularly when there are regular face to face meetings.
What if reach an agreement on almost everything but there is one point that remains outstanding? Does the process end?
No, because it might be possible to ask for a judicial decision on that one issue or alternatively instruct a Barrister jointly to express a view.
Before this is done everybody must agree that the philosophy of Collaborative Law would not be damaged by such a course of action and they must also agree about the issue and who will be the Arbitrator.
How much does it cost?
Collaborative lawyers charge at an hourly rate and when you instruct one you will receive a copy of his or her firm’s terms of business. Time is charged by reference to work done on the case. It is difficult to provide any accurate estimate of the likely costs involved but they are unlikely to exceed £15,000 in total (for both parties) unless the case is particularly complex and requires the involvement of specialist advisors such as accountants. The solicitors’ governing body (The Law Society) requires the profession to provide the client with reasonably accurate estimates of prospective costs and you will receive this in what is called a client care letter after you have decided to instruct a collaborative lawyer. If the costs estimate is likely to change he or she will notify as the process ensues.
This is a relatively new process and so only limited statistics are presently available but it seems that the costs of negotiating a settlement via Collaborative Law are likely to be somewhat less than the costs of proceeding to Court in the conventional way.
Save in exceptional circumstances an agreement ought to be achieved in a period of no more than 6 months.
How do I find a Collaborative lawyer?
You can contact www.collablaw.org.uk as well as www.collaborativefamilylawyers.co.uk who have the names of Collaborative lawyers practising in England.
Interview several and ask for resumes. Ask how many Collaborative Law cases the lawyer has handled (but remember this is a relatively new process at the moment in the UK). Enquire how many cases have terminated without Agreements. Also ask what training the lawyer has had in Collaborative Law, Alternative Dispute Resolution and Conflict Management.
It is probably best that a qualified collaborative practitioner is instructed but if that cannot be done, there is nothing to prevent your lawyer from working cordially and cooperatively with whoever is instructed.
How do I enlist my former partner in the process?
Talk to your former partner and see whether there is a shared commitment to be collaborative. If there is encourage him or her to select a lawyer who has experience and training in Collaborative Law and who works effectively with your own lawyer, because lawyers who trust one another are an excellent predictor of success in dispute resolution.
What if my former partner chooses a lawyer who does not know about Collaborative Law?
The problem here is that the individual involved needs to be suitably qualified and to have undergone the appropriate training.
You would probably be well advised not to engage in the process with a lawyer representing your former partner who is unqualified, but that would not prevent your lawyer from working cordially and co-operatively with his or her opponent.
