What is collaborative family law?
- Collaborative family law is a new approach begun by family lawyers to manage the divorce process in a dignified manner. In this collaborative process the family lawyers and their clients agree in writing to reach settlement without court involvement. They agree to work together to resolve children and financial issues arising out of the separation. In addition, they may enlist other experts, such as child specialists, as part of the team. Utilising their skills in client representation, negotiation and problem-solving, collaborative family lawyers help their clients shape a fair agreement.
- Relationship breakdown will always involve financial and emotional costs. The benefits of collaborative family law help minimise those costs for all concerned.
- You and your partner agree with your lawyers to resolve issues without going to court
- Settlement is reached in '4 way' face to face meetings (2 of you and 2 lawyers)
- All information and disclosure is provided in the collaborative process
- You remain in control of the process but with your lawyers there throughout for legal advice and guidance
- If no settlement can be reached new lawyers will have to be instructed for court proceedings
What is the goal of collaborative family law?
- To assist you and your spouse/partner to resolve all matters arising out of your separation in a dignified and respectful way for the benefit of the whole family.
Is collaborative family law the best choice for me?
- Collaborative family law is not for every client or indeed every lawyer but it is worth considering if some of the following is important for you.
- You want a dignified non-aggressive resolution of the issues.
- You and your partner have children and wish to reach a resolution by agreement with their needs and interests at the forefront.
- You do not wish to incur the costs and animosity generated by court litigation.
- You would like to keep open the possibility of friendship or a relationship with your partner in the future.
- You and your partner have extended family and a number of friends to whom you would both wish to remain in contact in the future.
- You value retaining control over decisions about restructuring your financial arrangements or arrangements in relation to the children but with advice from experts.
- You do not wish to "hand over" such decision making to either your lawyer or to a complete stranger (a judge).
- Your main aim in the process is not to "seek revenge" on your partner.
- You need the assistance of a lawyer to help you negotiate in face to face meetings.
What is the difference between collaborative law and mediation?
- In mediation the mediator is prohibited from giving either of you legal advice and cannot assist you in advocating your position. A mediator is neutral.
- The mediator is there to facilitate you and your partner and has a duty to advise you each to take separate legal advice, either during the process or after.
- Any settlement discussed during mediation is only binding once each of you have had the opportunity of taking separate legal advice and have transferred the agreement into a separate consent order of the court. The mediator cannot prepare the court documents for you nor finalise the process.
- Provided agreement is reached your collaborative lawyer can act for you in the divorce and prepare the court papers to obtain the consent order.
- Lawyers are rarely present during the mediation sessions and their advice may be given too late to assist in the process.
- In collaborative family law, you each have your own lawyer throughout the process advising you and advocating on your behalf. If you or your partner lack negotiation skills or financial understanding or feel vulnerable when in the sole presence of the other party, collaborative family law could be preferable to mediation.
- Mediators may still have a role in the collaborative process if you and your partner wish to consult a mediator regarding an issue.
What kind of information and documents do I have to provide in collaborative family law negotiations?
- You and your partner must sign a binding agreement to provide full and frank disclosure of all documents and information that relate to the issues, entirely and early on in the process.
- The same duty of disclosure exists whatever model you choose to resolve your difficulties, To assist you, your partner and your future non-collaborative lawyers should agreement not be reached in the collaborative family law process, disclosure can be in the same form as in the court process.
What happens if my partner/spouse does not give full and frank financial disclosure or undertake the collaborative family law process in good faith?
- This can of course happen as it does in mediation and in conventional legal representation. Under the terms of the collaborative agreement, the lawyer must withdraw from acting from their client if he/she has withheld or misrepresented information intentionally or is participating in the process in bad faith. Likewise, it is open to your collaborative family lawyer to advise you to withdraw from the process if they do not consider that your partner (or indeed their lawyer) is keeping to the terms of the agreement.
- If you consider that your partner is unlikely to be honest during the collaborative process, is likely to lie about his or her financial affairs, then collaborative family law is unlikely to be a good choice for you.
Why can't you go to court if the process doesn't work but each of you agree to retain your existing lawyers?
- The reason that collaborative family law has been successful and developed (in other jurisdictions) is the fact that the lawyers are disqualified from acting for the clients should collaboration fail. The disqualification agreement means that all the parties, including the lawyers and clients, are attempting to achieve settlement without threatening or being subject to the threat of court proceedings when things become difficult.
- You are collaborating without the background of potential court litigation, and lawyers are encouraged to work together in assisting you to reach settlement.
- By agreeing at the outset not to go to court, you, your partner and the lawyers can be encouraged to reach creative settlements, having of course regard to the legal position but having you and your family's particular interests at the forefront of any settlement proposals.
If you think that this would suit you please e-mail us with your details and we will find you a local law firm that operates this scheme.