Collaborative Law – A “Good Divorce”?

15 July 2015

The purpose of this article is to provide a brief overview of one of those non court based options, namely, collaborative law and its use in family proceedings but before I do so perhaps it helps to set the scene to read one example of a successful collaborative process.  The Daily Mail interviewed a lady who had achieved a “good divorce” using collaborative law, she stated:

“If I had to choose again, though, I would still opt for the collaborative route. Open dialogue and working through every aspect of our split – from practical to emotional – is helping me feel positive about my future as a divorced woman, a single mother and an ex-wife communicating with her ex-husband… We’ll go to parents’ evenings together, and if [our child] ever gets married I hope he doesn’t feel he has to choose which of us will sit at the top table – we will both be there for him. We couldn’t stay happily married, but perhaps collaborative family law has set us on a steady path to being happily unmarried for ever.”

Introduction

What then is collaborative law?  The collaborative process involves the parties and their lawyers attending various meetings where everything from the practical arrangements of where to meet through to financial disclosure and children will be discussed.

The key to successful collaboration is that it is open and transparent. Ideas that are not considered within traditional divorce proceedings are often employed with success.

It is not an adversarial process. In collaborative law the lawyers must agree from the outset to take part whole heartedly in the collaborative process. If matters are not resolved and it is necessary to commence court proceedings then the collaborative lawyers agree not to take part in those court proceedings.  Parties must find new representation and this provides an added incentive for parties to ensure that the process is a success.

It also means that for the process to work you must have confidence and trust in the other lawyer to act fairly and embrace the process in full. It is not about point scoring.

Collaborative law is not for every party.  It is an option alongside traditional litigation, round table negotiations, mediation, arbitration, private FDR’s and even “kitchen table” negotiations.

Collaborative law is also not necessarily a cheaper alternative to the traditional court based divorce proceedings. It can be cheaper than pursuing litigation through the court (especially if ancillaries are contested) however the selling point of collaborative law is not costs.

The big plus for collaborative law is its holistic approach to dealing with separating or divorcing parties and their children. It has much more benefits in this regard than a traditional divorce and potentially can be a very worthwhile and ultimately rewarding process for both parties and lawyers.

The Collaborative Process

The key stages in the collaborative law process are as follows:

Stage 1

The process begins with an initial interview where the options available e.g. round table negotiations, mediation, court proceedings, collaborative law, counselling and family therapy are explained. If the party is happy with collaborative law then a further meeting will be arranged to discuss matters in much more detail and prepare for the first 4 way meeting (of which more to follow).

The initial meeting is very important as the lawyer needs to assess whether collaborative law is suitable for the party (as well as the party deciding if he wishes to proceed down this route).

Clearly for some, for example an aggressive husband who has control and knowledge of the finances and whose main aim is for his wife to “get nothing”, it may not be suitable. The process can therefore also end with the first meeting.

Screening parties as to their suitability to participate in the process is one of the key skills a collaborative lawyer must have. They must, amongst others, have an ability to participate in good faith, see perspectives beyond their own and be determined to use the process to resolve issues with goodwill. 

Stage 2

The next stage is for the collaborative lawyers to meet and prepare for the first initial 4 way meeting. This is an important meeting. The expectations of the parties and their priorities and concerns will be discussed. The lawyers will ascertain and confirm their expectations about the process to include agenda and conflict management, good faith negotiations and transparency of information.

They will share any concerns that they have. If there is a particular “flash point” for example with one party then the lawyers will discuss how this can be managed. An agenda will be agreed for the first 4 way meeting. This meeting will hopefully build good relations between the lawyers which will be an important factor in the success or failure of the process.

Collaborative law is very front loaded. If it is to be successful then it is important that there is sufficient preparation undertaken in advance of the initial meetings between parties and lawyers.

Stage 3

There will then be the first of a number of 4 way meetings between parties and lawyers. These will be used to review and discuss the agenda, discuss what is happening with the children, discuss how financial information will be shared (disclosure is the same as with traditional Court proceedings i.e. Form E) and plan and confirm the details for the next 4 way meeting. Minutes of the meeting will be taken.

Prior to the start of the first 4 way meeting it is necessary for the parties to complete an anchor statement. The key purpose of the anchor statement is to focus on what it is that the parties are hoping to achieve through participating in the collaborative process. These are mainly long term aims.

It is also necessary at the first 4 way meeting for the parties and lawyers to enter a participation agreement. This deals with the practicalities, purpose, process and costs.

The key to the 4 way meetings is to manage the process but it is the parties who will reach the decision as to how matters are resolved. The parties will move forward at the pace that they feel comfortable with.

The 4 way meetings can become very emotional. It can be difficult for lawyers to allow the parties to vent their emotion and this is where the lawyer must use his judgment, training and experience. It can often be better to allow a party to express their feelings however difficult that may be for them rather than to constantly interrupt. Managing the whole process is very much one of the key skills required for a collaborative lawyer.

It may be necessary at these meetings to utilise the services of a family consultant, financial neutral (a trained financial professional who adheres to the collaborative ethos and will bring financial knowledge and expertise to the process), or other collaborative professional to help the parties. The ability to bring these professional into the process is of key importance to collaborative law and the “good divorce” that it hopefully assists parties to achieve.

Stage 4

Intermediate 4 way meetings will then be held where any priorities and concerns will be discussed and short term needs dealt with. Financial information will be exchanged. The creativity of collaborative law can come to the fore at these meetings as lawyers (and their clients) should think creatively and brain storm ideas in order to resolve any impasse that may be hindering the process.

Stage 5

At the final 4 way meeting the divorce petition and other associated documents will be signed. Future pitfalls and how to handle them can then be addressed and the history of the collaborative work will be acknowledged and accomplishments highlighted.

The key to a successful collaboration is that it is open and transparent. It is about open discussions of objectives rather than negotiations. The lawyer is there more to facilitate a settlement then advice. There will be occasions when a party may reach a decision that the lawyer does not agree with but it is a decision that the parties have reached themselves and feel comfortable with. This can be very important in reaching a settlement that both parties are happy with and that gives them a genuine sense of well being.

The major benefit of collaborative law and its difference from court proceedings is in its holistic approach. Divorce is not an experience to enjoy but if the parties emerge at the other side having reached a settlement they are happy with then the process has been a success and the “good divorce” achieved.

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