Collaborative Family Law
“We’re not really friends and we’re not really enemies; we’re just normal people around each other.”
So said my nine year old daughter about one of her classmates, with whom she had been firm best friends one day, and mortal enemies the next, as children often are. It seems they had agreed to bury the hatchet and just co-exist.
If you are going through or considering a divorce, you may be daunted, not to say alarmed, at the prospect of court proceedings and, if you have children, you may well have concerns as to how you and your (soon to be ex) partner will continue to co-parent them in a constructive way and not to their detriment. Will you be able to face your partner on parents’ evenings and meet with their teachers? How will discussions happen and decisions be made when they come to change schools? Or the worst one: what will happen when they get married? Will they be able to enjoy their day or will they have to be more concerned with how they manage their warring parents?
Elsewhere on this website is a detailed explanation of the process which will be gone through if the Court sorts out your financial issues on divorce. For some it can work well, and while two out of three stages of the court process are designed to promote a negotiated settlement, it can still seem adversarial and acrimonious, however hard you and your lawyer try not to make it so. Situations can easily become inflamed and petty issues can get in the way of sorting out the important ones. And if you can’t sort out the important ones yourselves, then a decision will be made for you by a judge, after a full trial. It doesn’t happen often, but it is not something to relish. You might get what you want financially, or you might not, but if you or your partner has no relationship with the children because of it, maybe it isn’t so great after all.
However, there is an alternative, if you are prepared to work with your partner to come to an agreement which is acceptable to you both. You may have seen “Collaborative Family Law” mentioned elsewhere on this website, and in essence it is what my daughter was describing in the arrangement she had come to with her former friend. You don’t have to be best friends with your former partner, but also you do not have to be mortal enemies either, if you can agree to set aside your differences and be “normal people around each other”.
What is Collaborative Law?
Essentially, it is not unlike mediation but rather than having one person mediate between you, who cannot take sides or give legal advice, there are two, as you each have your own collaboratively trained lawyer who acts as your ally and advisor but who works with, rather than against, the lawyer representing your partner in order to get to an agreement which is acceptable to you both. This method of resolving family disputes is becoming increasingly popular, as it allows you to have control of your dispute resolution and to maintain dignity and good will, and to reach a conclusion in a constructive, non acrimonious, way. It is all done by way of face to face meetings be it you with your lawyer, your lawyer with your partner’s lawyer, or all four of you together. The fundamental aim is to resolve the issues between you without going to court.
Collaborative law is not restricted to financial issues. It can also be used to resolve issues concerning the children, or any other issue which concerns you, whether practical or emotional. Whether or not you have split from your partner in circumstances involving blazing rows, stormings out and position taking, the chances are that neither of you will have really heard what the other has had to say, or acknowledged or understood how they might feel about a particular issue. Often making a small concession such as acknowledging how someone feels about something can unlock a seemingly hopeless situation and allow agreement to be reached.
Generally, the fundamental cause of marriage/relationship breakdown, underneath such issues as who went off with someone else or who behaved badly to the other, is a breakdown in communication. The Collaborative Family Law process allows the lines of communication to be re-opened in an environment which is safe for both of you. You have control, and you set the agendas for issues which need to be discussed.
How Does It Work?
Essentially, issues are discussed and resolved by a series of face to face meetings, which will be between you and your lawyer, your lawyer and your partner’s lawyer, and all four of you together. Very few solicitors’ letters are sent as all the admin is done by phone or email. You and your partner set the agendas for the meetings, so that the issues which are important to you are discussed, and these can include any kind of issue, whether it is a short term one about who is going to pay for the school uniform, or a long term one about what will happen to the house.
It is important for both parties to recognise that one partner may want to take things at a different pace than the other. Dealing with the split when you are the person ending the relationship can be very different than for the other person, who may find themselves suddenly dealing with a fundamental life change that they had never anticipated. The collaborative process allows for factors like these to be taken into account so that one party knows that issues will be dealt with, but not right now, and the other does not have to deal with things just yet which they are not quite ready for.
At the beginning of the process, you both sign an agreement in which it is set out that you agree (among other things)
• the boundaries for the discussions
• to disclose all financial information and documents that relate to your family,
• not to go to court to resolve any issues
The disclosure obligation applies whatever method of dispute resolution is chosen. In the collaborative process, if you do not provide full information, or the process breaks down, the lawyers must withdraw and you will both have to instruct other solicitors. This factor plays a strong part in the success of the process, because it means that both clients and lawyers are focused on achieving settlement without the threat of court proceedings when things become difficult. Instead, you are encouraged to reach creative solutions which are within the bounds of the law, but take the particular needs and interests of you and your family into account.
The agendas set for the meetings will include discussions on how financial information will be shared and agree timetables for that information to be produced. The meetings may consider whether other professionals need to be involved, for example specialists in pensions and financial planning, or people trained to help children understand and cope with the changes that your divorce is bringing to their lives. As the meetings progress, you will be enabled to reach agreement on finances and arrangements for the children.
When agreement has been reached, there will be a final meeting to go through the documents which detail that agreement and to discuss anything which needs to be done for the agreement to be implemented.
Who is it right for?
The simple answer is, not everyone. If one partner is, for example, set on revenge, or is reluctant to disclose all assets, or perhaps is heavily influenced by a new partner, then the collaborative process is not likely to be successful.
However, if you both want a dignified, non-aggressive resolution to the issues, want to keep a good relationship with your partner in the future and want to put the needs of your children first, then the collaborative process is worth considering.
Not the soft option
If you go into the collaborative process thinking that you can brow-beat your partner into agreeing to what you want, or you think you can get away with not disclosing all your assets, you might want to think again! Both of you will be represented by lawyers who are committed to ensuring that neither party has the upper hand or is bullied by the other; and disclosure requirements are just as stringent as they are with the court process. The collaborative process can be hard work, especially if there are emotional issues which need to be addressed to allow you both to move on. That said, the court process can be equally painful, if not more so if it gets very acrimonious, but the benefit of the collaborative process is what you aim to take away with you at the end of it – dignity, respect and the chance for a reasonable relationship with your partner for the future.
Aren’t all these meetings with lawyers expensive? Well, yes, perhaps, but so are all the court hearings and correspondence involved in resolving disputes through the court process. With the collaborative process, there are no court hearings, so you don’t need a barrister as well as a solicitor to represent you. Issues get discussed in meetings and not debated in time consuming and expensive correspondence. Your lawyer does not need to take your instructions on issues raised by your partner because you are right there to deal with them!
Costs are not dissimilar to going to court and reaching agreement under that process. It is fair to say though, that the costs will be far less than a fully contested trial where a judge makes a decision at the end of it. Apart from the financial costs, there are the emotional ones to consider too, and the collaborative process can be far less expensive in those terms.