Collaborative Law. What is it?

In the last year especially OnlyDads has been receiving growing numbers of requests from individuals to explain the terms Collaborative Law and Mediation.

John provides a very clear summary of what collaborative law is. I think many reading this post will recognise that if at all possible, this route for divorce has to be a good one.

Over to John. Those who don’t know him….well take it from us -he is a lovely man and a very caring solicitor….

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Alternative Dispute Resolution or “ADR” – a method of avoiding court proceedings – is strongly in focus at the moment with changes in family law requiring assessment for mediation before proceedings are issued. Another ADR route that parties can take in a family dispute is Collaborative Law.

Collaborative Law is a process devised by Resolution, the national association of family lawyers. Resolution lawyers subscribe to a code of practice that requires them to deal with all family cases in a non-confrontational way, avoiding inflammatory language and conduct and using court proceedings as a last resort.

The Collaborative process takes this idea one step further. Where your case can be dealt with in this way, both parties will instruct Collaborative lawyers who will then draft an agreement known as the Participation Agreement. This document governs your case and has many important features:

  • Neither party should, where possible, go over past events
  • The welfare of any children must be the priority in any discussions
  • There should be complete transparency in dealings, both in respect of financial matters and any children
  • All discussions to settle the case are “privileged” meaning they cannot be brought up later in a subsequent court case
  • Both parties and the lawyers  sign the agreement
  • If the discussions completely break down and court proceedings need to be issued, the Collaborative lawyers must not act any further and new lawyers must be instructed

All matters are then resolved in a series of  “four-way” meetings involving both parties and their solicitors, all in one room together.

The Collaborative process is not designed to be like the classic “round-table” confrontations that are portrayed in films and television.  Instead you will be dealing with highly competent, trained lawyers who are sympathetic, approachable and will understand what you are going through.

The court can still be used to process agreed matters such as agreed financial settlements or an agreed divorce petition, but the key thing is that the people involved have reached agreement on the content of these documents themselves in a dignified way.

Why does it work?

Collaborative Law works because the priority is to resolve matters your way, not how the lawyers think it should be resolved. The welfare of your children and your hopes and aims in resolving the case are the priority.

It also works because, at least in my experience, the lawyers involved have mutual respect for each other and their skills and beliefs.  It is critical that the lawyers get on as a foundation for civilised, calm and constructive discussions.

We as lawyers undergo extensive training (over four days). We learn to be “human” in the carrying out of our professional duties, and don’t just leave our human side for when we leave the office and get home

What sort of cases can be dealt with in this way?

Not all situations suit Collaborative Law, for example where there has been domestic abuse or a party is not willing to be transparent in the way they deal with things. However the Collaborative process can help resolve issues including:

• Divorce and resolving financial settlements
• Pre and Post-Nuptial agreements
• Separation of cohabiting couples, including property disputes
• Child disputes – residence (custody) and contact (access), both for parents and other family members
• Dissolution of civil partnerships and financial settlements
• Cohabitation or “living together” agreements
• Financial settlements for children that do not involve the CSA

You can read more about the process by visiting Resolution’s website at www.resolution.org.uk  or an interesting article of a journalist’s first-hand experience at http://ow.ly/4eFo0 .

The legacy

The legacy of a Collaborative case is (hopefully) that both parties to a dispute (for example a divorced couple) feel able to attend a future event involving their children together eg a wedding or christening, or they will be able to communicate effectively with one another over the day-to-day arrangements for the children without the need for us lawyers; or they may just remain good friends. A great thought….

John Osborne
Partner
Temple Heelis Solicitors LLP
www.templeheelis.co.uk

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About onlydads

Single Dad living near Totnes in Devon. I founded www.onlydads.org in 2007 and live with my daughters Priya, 14 and Anya 11. I write about single parenting, work, overcoming trials and tribulations and sometimes not overcoming trials and tribulations.
This entry was posted in Family Law, Family Law Fortnight, Guest posts. Bookmark the permalink.

2 Responses to Collaborative Law. What is it?

  1. Stephen G Anderson says:

    Nice synopsis John, though I think Stu Webb might have something to say about Resolution devising the process 😉

    The only thing I’d like to add is that I wouldn’t dismiss collaboration as an option just because of the existence of domestic abuse. Domestic abuse comes in many forms. It might be in the “one-off” non-physical category, or it might be systematic and cyclical physical abuse of the highest order. In fact, ask the right questions of our clients and we’ll find a much higher incidence of behaviour that fits the DA spectrum than we might like to admit.

    So I’d certainly consider collaborating where DA has taken place, it just depends on the type and when the last incident was. And I’d also consider bringing in a family consultant with experience in the field of DA to help the couple if I thought that might make the collaboration more likely to succeed.

    I know there aren’t many out there who agree with me, but I like to think I’m on to something that isn’t quite as harebrained as some others think it is.

    • John Osborne says:

      Thanks Stephen and yes Stu Webb would be right to say something! Fair comment. Domestic abouse was just a very general example of where collaboration may not be appropriate but even then it may be possible, as you say. I would never rule it out, but it would depend on the facts of cousre.

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