Collaborative law

What is collaborative family law?

Collaborative law uses an interest based negotiation model. It is a non-adversarial dispute resolution process facilitated by lawyers with the objective of achieving an ethical and enduring settlement for the clients.

It also aims to assist in developing / maintaining an ongoing working relationship between the parties. It started in the US in 1990 and is widely used there and in Canada and the UK.

The key characteristics of a collaborative approach are:

• The clients and lawyers sign a contract agreeing to negotiate in good faith to resolve a dispute without resorting to litigation
• If the dispute is unable to be resolved by negotiation the lawyers acting for all parties will withdraw and not act for their clients in any litigation proceedings
• The negotiation process consists of a number of four-way meetings involving the parties and their lawyers working together
• Advice is to be with the aim of achieving a fair process and just outcomes for both parties
• The promotion of ongoing communication
• Aim to ensure costs are not incurred unreasonably

In many disputes, especially matters involving children, there are other professionals such as counsellors and family therapists who can offer expert advice and assistance to you. Learning how to communicate with one another and resolve conflict as it arises will be invaluable long after the "legal process" is finished.

In disputes involving financial matters, financial advisers or valuers or accountants may be needed to provide information or advice.  Similarly, environmental experts or surveyors may be called on to assist the process in other types of matters.

The collaborative process is very flexible and other professionals may be used in a team approach to work with or alongside your lawyers.  You may wish to see them separately or together in a meeting with the lawyers or they may report to a meeting.  How such an expert is used is decided and agreed by you.

Collaborative law is not for everyone

Collaborative law will be of interest if the following are important to 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 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 either to your lawyer or to a judge
• You want your dispute and the terms of any subsequent settlement agreement to be confidential
• You need the assistance of a lawyer to help you negotiate in face to face meetings

Collaborative law will not be the right option for you if:

• Your main objective is to "seek revenge" or to “have your day in court”
• You are looking for a "soft option"
• You think that the process will allow you to "out-manoeuvre" the other party
• You are hoping to get away with giving less than a full and frank financial disclosure

In cases where there is a history of domestic violence or other abuse, the collaborative family law specialists will need to consider very carefully whether the case is suitable for the collaborative process and are likely to insist on the involvement of other professionals in the process to ensure that the interests of you, your partner and any dependant children are adequately protected and represented.