What is Collaborative Family Law?

WHAT IS COLLABORATIVE FAMILY LAW?

Collaborative Family Law is a method of resolving the legal and financial issues that arise from separation.  It is about cooperation, not confrontation.   It aims to meet the real needs and interests of both spouses – and avoid court.  It fosters positive post-separation relationships – especially important when there are children.

Collaborative Family Law has many advantages including:

  • Each spouse is represented by his or her own lawyer throughout the process.  Both lawyers help you and your spouse work as a team to:
      • identify your common interests and understand each other’s concerns;
      • exchange information;
      • explore a wide range of possible choices; and
      • reach the best possible solution that is acceptable to both of you.
  • Both lawyers and spouses sign a Collaborative Law Participation Agreement at the start of the process which provides that all four parties to the contract will not go to Court or use threats of Court to solve the dispute.  If the collaborative process fails, both lawyers and their law firms must withdraw from acting for their respective clients.  The lawyers therefore share with their clients the incentive to make the Collaborative Process work.
  • The Participation Agreement requires both spouses to provide full and frank disclosure of all relevant information.  Lawyers are obliged by the Agreement to require that their own client meets this obligation – or to cease acting if their client refuses to do so.
  • Both spouses have skilled legal advisers at every stage of the process.   Both lawyers understand how to reach creative settlements.   You are never on your own; your lawyer is at your side, explaining issues and helping you to achieve goals by mutual participation and agreement.  This is in contrast to mediation where the independent mediator cannot offer legal advice.
  • The Collaborative Law process is different to the traditional positional bargaining approach that most lawyers adopt.  Traditional negotiations are generally based on what lawyers argue might happen in court (although most separated spouses do not go to court).  Parties take opposing positions based on these theoretical court outcomes and make allegations and counter-allegations to support them.  This process can worsen the relationship between spouses and make future communication and cooperation (in respect of children, for example) more difficult.
  • Collaborative law (in contrast to traditional negotiations) is based on both spouses and lawyers adopting interest based negotiation techniques.  The threat of court (or what a court might decide) is not made.  Spouses and lawyers work together as members of a settlement team, rather than working against each other as “opposing parties”.
  • Negotiations are carried out almost entirely in four-way meetings attended by both lawyers and both spouses.  This ensures both spouses are aware of each other’s concerns and interests.  It encourages trust and avoids misunderstandings.  It can help establish new and workable post-separation modes of communication that will assist spouses cooperate into the future.
  • In the Collaborative Law Process spouses:
      • treat each other with respect;
      • listen to each others’ perspectives, interests and concerns;
      • explore all possible choices;
      • let go of the past in order to focus on the future;
      • establish new techniques for communicating.
  • Both clients may spend less money and time using the Collaborative Law Process than in other processes – particularly going to Court.

WHAT IS THE COLLABORATIVE LAW PROCESS?

Both spouses must instruct lawyers who are trained and accredited as Collaborative Practitioners.  If your spouse does not wish to do so, we can still act for you in traditional negotiations or litigation.

A series of four-way meetings of spouses and lawyers is held.  The exact number and length will vary.

A typical series of meetings may be as follows:

  1. Initial meeting to confirm each party’s commitment to the collaborative process.  The Collaborative Participation Agreement is checked and signed by each party and lawyer together.  Spouses are able to meet and establish trust with the other spouse’s lawyer.
  2. At the second meeting, parties and lawyers will identify issues of concern to each party.  They will identify what additional information may be required to fully understand the relevant issues.  This might involve exchanging of documents or obtaining reports from experts.  For example, real estate value, superannuation or business valuation.
  3. Following identification of issues and collating of relevant information, the third meeting allows for brain storming of all possible options and solutions.  This then allows for negotiations as to which possible solutions might be acceptable to both parties.  This would then enable the drafting of relevant settlement documents to reflect the agreement.
  4. Final meeting in which the settlement documents can be checked together by parties and lawyers, and if acceptable, signed jointly.

Generally, the location of each meeting alternates between the offices of the lawyers.  Meetings normally take between one to two hours.  Discussions and negotiations occur primarily at the four way meetings to encourage trust and avoid misunderstanding.  There is contact between spouses and their respective lawyers in between meetings in order to obtain relevant information and plan for the next meeting, as well as checking settlement documents.  As a result, meetings generally occur around two weeks apart.

Experts may be employed to help with particular steps.  For example, parties may employ a neutral real estate valuer, or an accountant to calculate tax liabilities.  A child counsellor or psychologist may help parents consider age appropriate residency arrangements – including speaking with the children to assist them in dealing with separation.  Counsellors or psychologists known as divorce coaches can help spouses deal with the emotional effects of separation and teach effective communication techniques.  This can assist spouses in negotiating agreements with unnecessary conflict and to establish post separation modes of communication in respect of children and other long term issues.  Such experts should be trained in collaborative practices and should enter into the Collaborative Agreement.

Matthew Shepherd is a member of Collaborative Professionals NSW.  He is a member of the Relationships Australia Collaborative Practice Group.  He is also a founding member of the Northern Sydney Collaborative Practitioners Group.  Matthew can explain the Collaborative process in more detail and help you decide if it is the best process for you to solve your family law issues.