Collaborative law is a new option for out of court family law alternative dispute resolution. It was developed in the USA by a Minnesota lawyer in the late 1980’s who believed that there had to be a better way to resolve family law disputes than the adversarial process with its accompanying aggression and win at all costs approach adopted by the parties and lawyers.
Collaborative Law has now become popular in not only the USA but also in Canada, the UK, Europe and Australia.
What is Collaborative Law?
Put simply, Collaborative Law involves the parties and their lawyers meeting to negotiate a settlement of property and/or children’s issues without the necessity of going to court, preparing court documents and complying with court rules and procedures. Importantly with collaborative law, the parties and their lawyers:
Unlike mediation there is no mediator to guide the process – it’s done by the parties and their lawyers face to face.
Throughout the process the separating couple will be:
If a resolution is reached, which may take a number of meetings, orders can be drawn and sealed by the Family Court so they become enforceable.
At the commencement of the process the lawyers for each party provide a retainer agreement to their client which sets out the scope and duties of the lawyer. If settlement cannot be reached or if one party decides to terminate the process and head to court then the lawyer’s retainer is terminated and they are disqualified from representing the party in court. This is necessary because of the frank and open nature of the process but it will lead to more costs being incurred.
What are the Advantages?
What are the Disadvantages?
Is it for Everyone?
Collaborative Law is not without its issues. It takes trust between both parties to undertake the process, which is often the most lacking ingredient in family law cases.
Lawyers have to undertake training to be able to participate in the process. Much of the success of the collaborative process depends on the lawyer initially undertaking an assessment as to whether the case and the client are suitable and then being able to put to use their skills
Abuse, Mental Health and Drug Dependency
If there is a history of domestic violence/controlling and dominating behaviour, mental health issues and/or addictions by one party then this process is unlikely to be suitable. The parties need to feel comfortable being in the same room and talking face to face to the former partner while they address difficult personal and emotional issues. They have to be able to consider the needs and interests of the other party and anything that clouds this ability will make the process futile.
If the financial resources of one or both parties is modest then consideration has to be given to whether this process is suitable and in particular if it would be better to proceed to court to guarantee a result.
In Australia, with court resources decreasing and with a lack of political will to address it Collaborative Law offers an alternative to court proceedings and mediation for clients and lawyers to consider.
If you need a lawyer to assist with your separation or divorce and would like to investigate this process further please call our Family Law team.
This communication provides general information which is current as at the time of production. The information contained in this communication does not constitute advice and should not be relied upon as such. Professional advice should be sought prior to any action being taken in reliance on any of the information. Should you wish to discuss any matter raised in this article, or what it means for you, your business or your clients' businesses, please feel free to contact us.