Collaborative Law

• Collaborative law (also referred to as ‘collaborative practice’) process is an alternative to contentious court proceedings for dealing with the issues arising from divorce or separation.
• The process involves both spouses/partners and their respective legal representatives (who must be trained collaborative lawyers) working together to agree the practical details of their separation or divorce, such as dividing finances and deciding arrangements for children.
• Over a series of virtual or face to face meetings (sometimes referred to as four-way meeting), the parties will set out any issues that need to be decided, then agree any decisions that need to be made. These decisions can then be formalised by applying to a Family Court for a Consent Order if required.
• The process is governed by a Collaborative Agreement, signed by both parties and their lawyers. This commits everyone to work towards settlement at their own pace, without the threat of court intervention.
• The collaborative agreement also prevents the lawyers acting for each party from representing their clients in any future court proceedings if an agreement cannot be reached. This ensures everyone is fully committed to making the process a success.

• Avoiding unnecessary conflict – As the emphasis is on working together, collaborative law encourages couples to keep things amicable and not turn separation into an argument.
• Keep decisions about your finances and children in your hands – Should you take your divorce to court; a judge will have the final say over key decisions about your family’s future. Collaborative law allows those decisions to stay with you, removing uncertainty.

• Minimise the cost of your divorce or separation – The legal fees associated with collaborative law are generally much lower than for contentious court proceedings. 

• Reach decisions faster – Because there is no need to wait for a court date, it is normally possible to agree the details of your divorce or separation much faster.

• Maintain a better relationship for the future – By removing conflict and encouraging communication and compromise, the parties normally come out of the other side with a much better relationship than if court proceedings are involved. This is particularly important where there are children whose emotional wellbeing should be paramount.

• Your focus is on the future.Collaboration transforms divorce and separation from an adversarial, ‘win/lose’ process into one that’s problem-solving and constructive. Open communication allows you and your partner to express your needs and wishes for the future and gives you the tools to move on.
• Your children benefit.Any decisions that affect your children are being made by the two people in the world who know them best and love them most – their parents.
• You are involved throughout.Face-to-face meetings in the presence of lawyers make negotiations direct and efficient. And, because the collaborative process is structured around your needs, concerns and goals while allowing both parties to be heard, you and your partner can work towards outcomes that you both can live with.
• You enjoy confidentiality.Problems and financial information are kept private.
• You work with trained professionals who are important to all areas of your life. Collaborative practice allows you to benefit from the support of child and financial specialists, divorce coaches and other professionals all working together on your team.

No single approach is right for everyone. So collaborative law may not be the right option for all cases. But many couples do find collaborative law a welcome alternative to the court process. Collaborative law could be for you if you both:

• Want a civilised, respectful resolution of the issues and are willing to focus on solutions rather than blame or revenge
• Want to maintain a productive working relationship with each other
• Are co-parenting and want to keep your children’s interests at the forefront
• Value privacy
• Wish to control decision making over childcare and/or financial arrangements rather than turning them over to a judge
• Place as much value on the relationship that would exist in the restructured family as on obtaining maximum resources

To determine whether collaborative law is right for you, ask yourself whether these values are important to you:

• “I want to maintain a tone of respect, even when we disagree.”
• “I want to prioritise the needs of our children.”
• “My needs and those of my spouse require equal consideration, and I will listen objectively.”
• “I believe that working creatively and co-operatively solves issues.”
• “It is important to reach beyond today’s frustration and pain to plan for the future.”
• “I can behave ethically toward my spouse.”
• “I choose to maintain control of the divorce process with my spouse, and not relegate it to the courts.”

If you can say “yes” to these basic principles, then collaborative law may be for you.

Before you begin, you and your partner must decide whether you can work constructively together in an open, honest way. Collaborative law is for those who, instead of focusing on achieving the largest financial reward regardless of the cost, wish to find solutions that will benefit the whole family. Once you’ve decided to try collaborative law, you will go through the following steps:

• You and your partner each instruct a specialist collaborative family lawyer. You can see a list of trained collaborative practitioners practising in the South and South West of England at resolution.org.uk
• You both agree with your lawyers to work together as a team and to resolve issues without going to court. All must be willing to sign up to a Collaborative Participation Agreement committing to this approach. In addition, the lawyers contractually agree to serve as ‘settlement counsel’, barring them from ever representing their client in court in the case.
• You and your partner, accompanied by your chosen collaborative lawyers, meet in ‘face to face’ meetings, sometimes called four-way meetings.
• At these meetings, your lawyers are there to provide support, legal advice, and guidance. They also help you to conduct interest-based negotiations that focus on needs, not rights, and to work toward a parenting and financial plan that you can both accept.
• You can enlist other experts to help as part of the team. Additional experts, such as divorce coaches and child and financial specialists, may join the process and meetings as and when you need them to.
• Meetings are based on the prompt, honest and open disclosure of all information. Collaborative law depends on you and your partner being clear about your needs and expectations, especially concerning the well-being of your children. The final separation or divorce agreement will be the result of mutual problem solving.

If it happens that the process breaks down and either party decides to go to court to contest an issue, both collaborative lawyers remove themselves from the case and, if needed, arrange alternative representation for the parties. This means, unlike all other legal processes, the risk of failing to achieve a settlement out of court is distributed in a very large part to the lawyers, as well as the parties.

The role of the collaborative lawyer in the process is to:

• Help clients work through their issues in a series of meetings at a pace they both find comfortable
• Encourage their client and the other party to share key information honestly and promptly
• Help defuse differences and keep clients focused on their children’s best interests
• Advise on how the law might apply to their client’s individual situation
• Help clients to reframe their thinking, develop goals as opposed to taking positions, identify and debate options, and to make good and ethical choices
• Facilitate the creation of a range of possible settlements for clients that might not normally be available in court but are tailored to their individual circumstances and aims for the future.

• Collaborative practice differs from a Divorce Court process by promoting respect and by keeping control of the process between the separating or divorcing couple, and not with a judge. Because couples and their lawyers agree not to go to court, this means that the process is more open and less adversarial. It also means the parties have far greater control over the divorce process and its outcome, and they can work together towards mutually beneficial solutions.

In collaborative law:

• The parties are represented by their lawyers throughout the entire process.
• The lawyers can draft a settlement agreement.
• The parties and their lawyers sign a Collaborative Practice Agreement in which they agree not to go to court, with the lawyers agreeing to serve as ‘settlement counsel’ only, which prevents them from ever representing their client at court.

In mediation:

• The parties hold discussions guided by an impartial mediator, who cannot give legal advice or advocate for either party. This means the parties must instruct separate lawyers, whom they can ask to be present during the discussions or consult between sessions.
• The mediator can prepare a draft of settlement terms discussed by the parties, which must then be reviewed by independent lawyers.
• If mediation doesn’t lead to a settlement, the parties can instruct their chosen lawyers to represent them at court.

So, you can move on with the confidence and peace of mind that you have protected what is most important to you, there are times when working with other professionals can be helpful.

• Child specialists can work with parents to create a parenting plan that works best for the children.
• Financial specialists help gather, analyse, and interpret financial information.
• And family consultants or divorce coaches can assist individuals to manage difficult emotions and keep communications on track.

These experts can be part of your collaborative team. You and your ex-partner would hire them together, and they would act as neutral advisers to you both. It’s important to remember they cannot later act as expert witnesses if the case does go to court.