What is Collaborative Law?
As the name suggests, Collaborative Law is an alternative method of dispute resolution whereby the parties’ will seek to work together to secure an amicable resolution of their matter.
It is a means of resolution that can be used in all manner of cases, from whether the parties should pursue a divorce or informal separation, the division of finances or arrangements for children following the breakdown of a relationship. It can even be used for couples planning to marry that wish to enter into a pre or postnuptial agreement.
Collaborative Law is a ‘cards on the table’ approach, whereby both parties ‘show their hand’ and actively seek to reach a resolution by agreement between them.
One of the benefits of Collaborative Law is that matters which are not necessarily legal issues can also be addressed if appropriate and considered important to the parties to help them get through what may be one of the most difficult times in their lives.
How is Collaborative Law conducted?
It is conducted primarily by way of round table meetings so that the parties have an opportunity to openly discuss the issues at hand. An Agenda is prepared and agreed in advance so that everyone is clear about what is to be discussed and resolved and any information that needs to be provided beforehand can be dealt with.
Generally, correspondence is avoided, save for dealing with disclosure or obtaining third party reports where required.
Both parties’ will be asked to provide what we call Anchor Statements in which they will set out in their own words their reason for wanting to pursue their matter collaboratively. Examples often include wanting to maintain a positive relationship for the benefit of children following separation or wanting to resolve matters amicably without going to Court.
The parties enter into an agreement that neither party will go to Court. If the Collaborative process breaks down, both parties’ have to instruct new legal representatives if they wish to commence court proceedings.
What is the difference between Collaborative Law and Mediation?
Both Collaborative Law and Mediation are alternative forms of dispute resolution, with the aim being to avoid litigation through the Courts.
The main difference between Collaborative Law and Mediation is that with Collaborative Law both parties and their legal representatives are present at each roundtable meeting. This means that both parties’ have the benefit of legal advice throughout the meeting and this generally enables matters to progress at a quicker pace. The legal advisors may also raise matters which the parties had not considered and which they may not have thought of in mediation.
Legal advice is generally given openly during the roundtable discussions and if an alternative view is taken by the other parties’ representative this can be openly discussed. There is an opportunity for private discussions if required, but this is avoided where possible to prevent the meetings becoming tactical as this is not the aim of the process.
The parties’ legal advisors will have been involved in every part of the case from disclosure to correspondence, so they have a full understanding of what the issues are that need to be resolved and the background of the case. When an agreement has been reached, the parties’ legal advisors will prepare a Consent Order to be approved and signed by all. Once filed with the Court and approved it becomes legally binding.
In Mediation, both parties’ attend alone. The Mediator is a neutral person and is unable to give either party legal advice. They may suggest that legal advice is sought on certain issues, but they cannot give advice. The parties’ may, therefore, have to adjourn a meeting so that advice can be sought and return at a later date.
When an agreement is reached through mediation, a Memorandum of Understanding is prepared by the Mediator. The parties’ legal advisors will then have to prepare the Consent Order to be agreed by all before it is filed with the Court. If the parties’ have not sought legal advice before this stage, this can often be a time when issues will be raised about the fairness of an agreement reached or how it could be practically implemented.
Is Collaborative Law suitable for me?
Collaborative Law is by no means suitable in every case. If there is abuse by one party or an imbalance of power, then it is unlikely to be suitable.
For Collaborative Law to be effective, both parties must want it to work. There must be a desire to resolve matters amicably and fairly. All Collaborative legal advisors are members of Resolution, who are committed to a Code of Practice and promoting a constructive approach to family issues that considers the needs of the whole family. In suitable cases, a family consultant can be appointed to assist with any block to resolution.
In cases where Collaborative Law is successful, there may still be sadness that a relationship has come to an end for example, but there is also often a feeling of contentment that things have been dealt with in the right way. Knowing that the parties have worked through the issues together and reached an agreement amicably, without the need for proceedings, can only be positive.