Collaborative Law is one of the ways that provide an alternative to litigation in the courts to resolve family disputes and/or make arrangements about children, finances and other personal matters after separation or divorce. Mediation is the other principal form of alternative dispute resolution (“ADR”).
Collaborative law is well established in the US and Canada and first came to the UK in 2003. Since then many family solicitors have trained as collaborative lawyers organised by Resolution.
As in mediation, collaborative law is based on principled negotiations. In contrast to mediation, where both parties meet with one neutral mediator, however, in collaborative law, each has their own solicitor and issues are resolved in meetings of all four of them.
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The Basics of Collaborative Law
The collaborative law model is based on both parties and both lawyers agreeing in writing not to go to court, confirmed in a formal agreement, which everyone signs at the first meeting. This means that if one party later on decides to go to court after all, both solicitors have to stop acting and both parties have to change solicitors. The only exception would be in an emergency application.
This is a strong incentive to stick to collaborative law, even if there is a sticky patch. Similar to mediation, all issues are discussed in meetings with the difference that there are four people instead of three: the two parties and their lawyers.
In most relationship breakdowns communication problems are the main or a contributory reason. This does of course create a major problem when right at the time when the parties find out that their communication problems have led to the breakdown of their relationship they have to communicate about a range of issues in order to disentangle their relationship. This is where others can help.
As in mediation, the two solicitors, who are trained as collaborative lawyers, will try to guide you so that you can communicate effectively and the discussion and the negotiations are conducted in a principled way.
At the same time, each lawyer can put your case forward and also give you advice. Sometimes the solicitors will give their advice in the meeting, so that both parties can hear how similar or different it is. If it is similar, the parties may be able to agree a point quickly. If it is different, they can see that litigation may be a costly gamble because a judge may take one or the other or an altogether different view.
You can only collaborate if you both have solicitors who are trained collaborative lawyers. Therefore, if one of you has already instructed a solicitor who is not a collaborative lawyer and is unwilling to change to another solicitor, you cannot collaborate.
The Collaborative Law Process
You will first meet your solicitors so they can take instructions about your situation from you. If you then decide that you want to use collaborative law to try to resolve issues, you will have to ensure that your partner has also instructed or will instruct a collaborative lawyer.
If he or she has already done so and has also decided to try collaborative law, your solicitors can make contact and arrange the first meeting. If your partner has not yet instructed a lawyer, you would need to approach them to see if they are prepared to explore this option. Your solicitor would discuss with you about how that could best be done, for example, by you contacting your partner direct, meeting and discussing the option; leaving a leaflet for them at home or sending them a link to this page.
At the first meeting the solicitors will between them go over the principles of collaborative law again and then everyone will sign the collaborative agreement.
The two solicitors will either meet or talk on the telephone to prepare each meeting and will set a flexible agenda. If financial issues are involved, they will schedule meetings so that you can prepare financial disclosure, usually by way of Form E, between two meetings.
Issues are discussed over a series of several meetings, usually at the office of one or the other solicitor. This also means that one solicitor will need to travel each time. Sometimes, the meetings will alternate between the offices.
Other than the financial disclosure the discussions in the meetings are privileged and confidential, and if the collaborative process was to break down, neither party would be allowed to refer to the discussions in later court proceedings. This allows everyone to talk freely and suggest options and proposals, they would otherwise maybe not put forward. Usually this leads to a faster conclusion.
Once you have come to an agreement on an issue, or all issues, your solicitors can share between them who will draft the documents, such as a financial consent order, and you can then use a further meeting to go through the draft and agree a final version to be sent to the court.
By comparison with mediation, more time is spent by the solicitors preparing each meeting with each other and each of their clients. The solicitors will also probably meet or talk on the telephone to their client after each meeting. This makes the process more expensive.
Where collaborative law has maybe a strength over mediation is that the two solicitors who will draft and agree a final version of the court papers have been part of the process and therefore will fully understand how you arrived there. There is less of a chance of matters becoming stuck at this stage. However, in mediation this danger can be reduced by choosing a good mediator and solicitors who understand the mediation process, who are perhaps themselves mediators.
You could also agree to deal with certain issues, such as how much time your children spend with each of you in mediation, which could run in parallel to the collaborative law process.
Collaborative law does not work for everyone, for example, if there is a history of abuse. Generally, both partners have to be very committed and function well. If there is an inequality of knowledge or negotiating experience, the presence and support of the solicitors can help to prevent this from resulting in an outcome that each party does not fully agree to.
You will meet in as many sessions as are necessary. Both solicitors will charge for their time at an hourly rate including for travel. Your solicitor should be able to try to give you an estimate of costs at the beginning of the process. However, since they will not be able to know how many meetings it will take to come to an agreement, this may have to be revised later.
Generally the costs are considerably higher than those for mediation, not least because you have two lawyers coming to each meeting, with one travelling there. Broadly costs are probably comparable with those of litigation if an agreement is reached at or around the FDR hearing. Even in a straightforward case they are unlikely to be less than £10-20,000 or so for each party.