18 Mar 2015
Leah Bowman, Senior Solicitor, looks at the role of Collaboration in Family Law Disputes.
The availability of different methods of resolving a dispute, mean that fewer people are seeking a right of recourse to the court, particularly in family law related matters. Court actions can be costly, and the outcome may be one that neither party particularly desires. In addition, the adversarial nature of the court process can further entrench parties’ positions, which is unlikely to assist the parties in being able to move forward, particularly when they require to co parent a child. As discussed in an earlier article, Mediation in Family Law Disputes 24th December 2014, there are a range of Dispute Resolution options. The aforesaid article focused on Mediation. Collaboration is another method of Dispute Resolution.
Collaboration is a relatively new model of Family Law Dispute Resolution. In the collaborative process, each client instructs their own collaboratively trained family practitioner, to advise and assist in negotiating an agreement on all issues. The Collaborative Family Law process can be suitable for all types of disputes including, but not limited to, separation and divorce, child related matters, Pre-nuptial Agreements and Cohabitation Agreements. The Solicitor’s job is to help the parties settle the case. All participants agree to work together respectfully, honestly and in good faith, in order to try and meet the legitimate aims and aspirations of each client. All of the negotiations take place in a series of “four-way” settlement meetings, at which both clients and Solicitors attend. At the beginning of the process, all parties (clients and Solicitors) sign a binding agreement to disclose all documents and information that relate to the issues in dispute. By signing up to the process, the parties agree that they will provide all information as early as possible, as fully as possible and voluntarily. The parties also sign an agreement to say that they will not litigate, and thus, the threat of going to court is removed. If either client decides to litigate, then both collaborative Solicitors must withdraw from acting, and each party will have to engage new representation.
Collaboration is designed to be a combined discipline. The parties can engage a Family Coach (a trained counsellor who is trained in the collaborative process) and / or a Financial Neutral (a financial adviser who is also trained in the collaborative process). As a result of this, the collaborative process can deal creatively and effectively with all three strands of a separation – legal, emotional and financial. Interdisciplinary collaborative practice allows the parties to receive emotional support, legal guidance and financial advice in a comprehensive way. The Family Coach’s role is to assist in the parties communicating effectively with one another, by identifying trigger points for each party, and suggesting ways in which these trigger points may be avoided or ways in which the parties can move past them. The lawyers provide information and advice about the legal framework, identifies what information is needed and helps the parties identify and assess options for settlement, and in this, they can be assisted by Financial Neutrals, who will outline the range of financial possibilities.
The Collaborative Family Law process cannot guarantee that every asset or every pound of income will be disclosed, any more than the conventional litigation process can guarantee this. Unfortunately, if one client is set on being dishonest, then their attempts can be successful. Therefore, the collaborative process may not be suitable if there is no trust between the clients. Collaboration can only really work if both parties are prepared to fully commit to the spirit of the process.
Since negotiations take place during a series of four-way meetings, the collaborative process is not suitable where there have been instances of domestic abuse, or where it is not safe for the parties to be in the same room or vicinity as one another.
The collaborative process, like any other dispute resolution process, cannot guarantee parties a satisfactory outcome. However, from experience it has been observed that the parties who fully engage in the process have been far happier with the results obtained, as they have a real sense of being actively involved in decisions regarding the future of their whole family.
Contact a specialist Family Law solicitor who is trained in providing advice on which method of dispute resolution is most suited to each client’s particular circumstances.