Collaborative Family Law: A Brief Guide BRIEFING. What is collaborative family law?

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1 Collaborative Family Law: A Brief Guide What is collaborative family law? Collaborative family law is a dignified and co-operative approach to negotiating, in which the commitment of the parties and their lawyers is to achieve a settlement that is as suitable as possible for all parties concerned, particularly the children, without the threat of Court proceedings. Separated or separating spouses or partners, with the advice and assistance of specialist family lawyers trained in the collaborative process, negotiate their issues as they define them, in a controlled, safe and respectful setting. The parties and the lawyers commit themselves to making every possible effort to achieve a settlement. To confirm that commitment, the parties and their lawyers agree that the lawyers cannot take part in any litigation that may occur if an agreement isn t reached. The specialist family lawyers are able to both advise their clients individually about their legal rights, entitlements and obligations, as well as helping them focus on the wider issues objectively, to help the client look beyond the raw emotion of the moment. This enables all parties to focus on effective communication and the gathering BRIEFING of facts to enable the separating spouses to look not only at their own interests, but also at the interests of their children and the extent to which their interests and the interests of their spouse or partner conflict and may be resolved. Emotional tactics, threats, or abusive communications are identified, discussed and eliminated. The whole focus is turned from position statements and posturing into an emphasis on settlement proposals, to achieve the best that can be done in the circumstances for the parties and their children. How does the process work? The process has been developed over many years in the United States and Canada. It is a specialised method of negotiating developed to deal with the emotionally charged, complex and life changing situation that arises on the breakdown of a relationship. It has been structured to maximise the chances of success; the term success, being defined by each individual client. Obviously goals need to be realistic and this is part of the job of the collaborative family lawyer. Such a lawyer is trained to help Page 1 of 5

2 individuals who may not be able to see the broader picture to look at realistic goals, to define what they want and place that in the context of what is achievable. Most of the negotiating takes place in meetings involving both parties and their lawyers, known as four-way meetings. The first of these meetings will try to establish the issues that need to be dealt with and identify what information needs to be obtained in order to provide the fullest information of each area. This will include full disclosure of financial information, utilising the same general questionnaires as are used in the Court process to ensure full and complete disclosure. That disclosure of documentation and information will be looked at by the individual lawyers with their clients and later discussed at a further four-way meeting in order to ensure that full and complete information is gathered together. Once this has occurred, then it is possible to explore options for dealing with the issues and, hopefully, finding solutions. This can often be the most difficult area since it is at this stage that individual interests conflict. It is here where the specially trained and experienced lawyers make a substantial difference, helping both parties to understand the reasonable expectations or wishes of the other. Understanding the basis of the other party s case does not mean that you have to agree with it, but will usually mean that what had been thought to be the battle lines begin to blur. It is at this stage that the four-way meetings really start to work. It begins to form a problem solving team, working together to find a solution that is best for the whole family. What had at first appeared to be a confrontation, turns through collaboration into co-operation, generating workable options and plans for the client s future restructured family. This is not an easy process. There has to be a willingness on the separating parties to want to try to find a solution rather than to punish the other person, or to win everything they want at all cost. Collaborative law is ideal for clients who want to reach a fair result, even though the word fair is entirely subjective and will mean different things to the different clients. How much does it cost? Both parties must instruct their own collaborative family lawyers. Each will therefore pay their own lawyers at whatever is that lawyer s standard rate. The charges are usually based on the time spent, charged at an hourly rate. There is no such thing as an average divorce or relationship breakdown: the facts of every case are different. One would expect most cases to resolve over a series of between 4-6 four-way meetings each lasting 1 ½ to 2 hours. In addition, the individuals will no doubt consult with their lawyers before and after these meetings. Including dealing with all of the drafting issues following agreement in order to obtain a Court Order, each party is likely to require between 20 and 30 hours of their lawyer s time. Often the issue of costs is one of the matters that is dealt with within the meetings, to ensure that there is fairness to all parties of this issue, as with all the other issues that are discussed. Cost, however, is not simply financial. There is a huge emotional cost in a relationship breakdown. The collaborative process can help to reduce this and, because the outcome is one which the parties agree as being the fairest possible in the circumstances, the future emotional cost is minimised. There is often considerable bitterness following one party losing in court and this can affect the relationship of the couple as parents to a huge extent. One of the major reasons for using the collaborative process is to minimise the effect of the divorce or relationship breakdown on the children. For children to see that it is possible to have a Page 2 of 5

3 civilised, dignified and co-operative separation in which the parents still have the interests of the children at the forefront of their mind, is likely to have long-lasting effects on the children and their own future relationships. Is the process faster than court proceedings? The participants set the speed of the process. Currently, the Court process is likely to take a year to get a full trial and a minimum of 6 months to the financial dispute resolution hearing stage, which is the stage at which most cases settle. The collaborative law process can obviously be much faster, as one is not subject to Court timetables and backlogs. During the fact-finding process there will often be relatively long periods between the initial meetings. Obtaining the financial information and completing financial questionnaires can be time-consuming. The parties often agree that there should be gaps of a month to 6 weeks between meetings to enable this process to take place. At the end stage, when all the information has been obtained and the parties are negotiating and considering proposals, it is often possible for the meetings to be much closer together. Am I going to get all of the financial information? It is often a concern of a client that their ex or nearly ex-spouse or partner will not provide full and frank disclosure of information. Part of the agreement between the parties provides for there to be full and frank disclosure of all documents and information that relates to the issues, including all financial issues, early on in the process. Both the clients and the collaborative lawyers sign the agreement. Part of the agreement is that the collaborative lawyers themselves must withdraw from acting for their client if they believe that their own client is withholding or misrepresenting information intentionally or is participating in the process in bad faith. Experienced family lawyers are used to looking at the disclosure of information from clients and the other side in order to find out whether or not full disclosure has been given. It is actually not as easy as people think to hide information from their lawyers or former partner or spouse. The collaborative lawyers use their skill both in relation to their own client s information and in relation to the information from the other party. Questions in relation to the disclosure can be raised in order to ensure that disclosure is complete. If, however, you are certain that your partner is unlikely to be honest during the collaborative process about his or her financial affairs, then collaborative family law may not be the correct route for you to take. It should also be remembered that the end result of a successful collaborative family law case is an agreement or Court Order. If substantial non-disclosure occurs and is later discovered, the Court has power to overturn the agreement or order. What happens if we don t agree? If an agreement cannot be reached, then the lawyers must withdraw from the matter and the clients will need to litigate the issues upon which agreement could not be reached. The financial information disclosed as part of the process will generally be available in the Court process so that the time spent on this will not be wasted or duplicated. Obviously, updating information may be required. The collaborative family lawyers will not, however, be able to continue to act for the clients in litigation. This has been found to be a very important element of collaborative family law in the jurisdictions in which this has developed. The disqualification agreement means that all the parties, including the lawyers, are attempting to achieve settlement without threatening or being subject to the threat of Court proceedings when things become difficult. Page 3 of 5

4 This puts an enormous investment in all parties into trying to find solutions. Without this, it is too easy for a client or lawyer to threaten litigation if their view is not accepted. Is collaborative family law the best choice? Collaborative family law is not for every client or indeed every lawyer. Having read the above, only you are able to tell whether or not you wish to consider this process. If you wish to have a dignified and nonaggressive resolution of the issues; If you and your partner have children and wish to keep the children s needs and interests in the forefront of your decision-making process and wish to retain a good relationship as parents; If you wish to keep alive the possibility of friendship or a continuing dignified relationship with your partner in the future and if you wish to have the same relationship with mutual friends and members of each other s family; If you know beyond doubt that your spouse will be dishonest, and will try to hide the true financial picture; if you wish for the decision-making process to be dealt with by the Court and a Judge in any event; then the collaborative family law process is not for you. I wish to proceed with collaborative family law how do I do so? Please speak to one of the contacts listed below. Your spouse or partner will also need to go to a specially trained collaborative family lawyer. We are able to provide a list of such lawyers. The first stage is that each of you individually meets with your own lawyers to ensure that the process is indeed for you. Assuming you both agree that you wish to proceed, then the lawyers will have a brief initial discussion and set up the first fourway meeting at which the collaborative family law agreement is entered into by the parties, and the process of information gathering begins. If you wish to retain control over the decision-making process and do not wish to hand over the decision-making to lawyers or a Judge; then the collaborative family law process may well be for you. However: If your main aim in the process is to seek revenge or to make your partner suffer; If you are so bound up with the emotion of the moment and you do not believe that you can separate your emotional need to hit out, or show the other person you are hurt, from the need to resolve the issues; If you feel under so much threat from your spouse or partner that you will be unable to negotiate without the fear of violence before or after meetings; Page 4 of 5

5 For further information, please contact: Emily Brand Partner T: E: Katie Spooner Senior Associate T: E: Anna-Laura Lock Solicitor T: E: Page 5 of 5