Collaborative Family Law
The Thinking Person’s way to separate? Madeleine Young explains the role of Collaborative Family Law for separating families.
These days most people have heard about the role of mediation in family law, but fewer have heard about the Collaborative Family Law process. Sue Baker and Madeleine Young in the Family team are trained and experienced Collaborative Family Law practitioners and are strong advocates of the process as a means of dealing with divorce with dignity and intelligence.
When a couple enter mediation, they aim to reach an agreement about matters concerning their financial arrangements, and arrangements for their children, with the help of an independent mediator. However, very frequently parties will want to have some legal advice about the arrangements they are proposing, particularly in relation to their financial matters. This can mean that the mediation process fractures, with each party taking legal advice separately which could undo the agreement they thought they had reached. The mediation process is evolving to incorporate more involvement of the parties’ lawyers if desired, but this currently remains the exception rather than the norm.
The great advantage of the Collaborative Family Law process over mediation for many people is that both parties have their lawyer with them in the room whilst they are negotiating. The process is very much led by the two separating parties, but with the support and guidance of their two lawyers. Each party can rely on their lawyer’s legal advice as the negotiations emerge. The couple and their lawyers are encouraged to act as a team, and all discussions are held in meetings known as “four-way meetings”. Gone is the risk of inflammatory correspondence from solicitor to solicitor upsetting already fragile family relationships. Experienced collaborative practitioners will ensure that the meetings are constructive, and outcome focused.
Success is dependent on the parties being honest and open about their financial resources and working together to find an acceptable solution to the issues they have. One critical factor of the Collaborative Family Law process is that the parties and lawyers sign up to a “Participation Agreement” which is a contract setting out the rules for the process. In the Participation Agreement the parties’ contract with each other not to go to Court, save for the purposes of putting any agreement they have reached into a Court order (known as a “Consent Order”). Therefore, there is a very strong onus on everyone to make the process work. In the worst case, and the parties are unable to reach some common ground, they will have to instruct new lawyers if they wish to enter the Court process. This wastes time and money for the parties and is therefore a strong incentive to try and reach an accord. Lawyers don’t like failing, and that in itself is enough incentive for the lawyers to work hard to reach an acceptable settlement for both parties! There is no Judge in the process, but experienced Collaborative Family Law practitioners who work together regularly are skilled at seeking out compromises which work for the family as a whole. Because of the nature of the process, Collaborative practitioners will be careful to ensure that the process is right for their client before recommending it. It is not a “light” option, and for some people facing their former partner in this way is just not possible.
Increasingly, couples are separating who have shared business interests, buy-to-let properties, or other shared assets which they may not want to dispose of, or which may result in significant tax considerations. The Collaborative process gives parties considerable control over the outcome, allowing them to become much more creative than a Judge would be likely to be, and the parties can conduct the process as quickly, or as slowly, as suits them. If appropriate it is quite possible, and indeed to be encouraged, to invite third party experts, such as accountants or family therapists, into the meeting to assist.
Where couples have children, dealing with matters this way can pave the way for more constructive relations in the future. Whether the children are adults themselves, or still young, they will inherently have a sense that their parents have resolved their issues together in a mature and dignified manner. Whilst the relationship between two people may end, it is important for many separating couples to remain a family for their children.
Whatever option you are thinking of taking, the first step should be to seek advice from a specialist family solicitor. If you would like any further information or advice relating to separation, divorce or family matters, our Family & Matrimonial team would be delighted to assist.