What is Collaborative Law (and is it the right option for me?)
Collaborative law is one option available for assisted family reorganisation following separation. It is designed to assist separating parties determine care arrangements for their children, and the separation of family finances with the intention to protect or even repair the relationship of separating partners and to reach an outcome that meets the needs of both parties outside of the win/loose mind set of traditional litigation.
Collaborative law practice seeks to use a joint team of professionals, of various disciplines, to assist the parties in focusing negotiations on the unique interests (needs, desires, fears and concerns) of each family rather than the stated positions of its individual members. It is a process aimed at assisting separating partners to calmly divide assets and make arrangements for the care of children in an informed way that caters for your particular family’s needs. Underpinning the collaborative law process is an understanding and agreement that you and your ex partner will act in good faith, be open and honest in your dealings with one another and that you will work jointly with your team to reach a fair settlement that takes into account the needs of both you and your former partner.
So, what is collaborative law, and it is an option for you and your family following your separation?
In Collaborative Law both you and your ex-partner will each be legally represented, and your collaborative lawyer will provide you with legal advice and support you through the process in the same way that they would in more traditional models of legal separations. Unlike in traditional litigation models Collaborative Lawyers will also:
1. Be but one member of a team of professionals who will assist you and your ex-partner to manage your separation in a way that best meets the needs of your family. The team might include your respective legal representatives, a financial advisor, a child psychologist and a coach who plays the role of independent conductor of the process. As each family is different, each team will be uniquely formed to meet the needs of each family;
2. Contract with you and the other participants in the collaborative team to resolve any issues around your separation outside the court room and to focus on the needs and goals of the parties in the process;
3. Along with the other members of the Collaborative Team, will be but one member of a team of professionals who are each charged with the role of assisting both you and your partner to transition from an intact family unit to a separated family in a calm and informed way that meets the needs of your particular family with all its particular nuances;
4. Create a space for and support you in playing a central role in the decision-making process of how you and your ex-partner manage your finances after separation and how you best meet the needs of your children. The Collaborative Process facilitates separated parties engaging directly with one another through a number of meetings facilitated by a coach. These are your meetings to discuss and resolve the issues that matter to your family. The other professional participants have the role of guiding the process.
Collaborative law is a powerful option for separating families. It is a tried and tested way that a professional team can help and support separating families navigate legal separation. Rather than having lawyers provide advice about likely outcomes and parties deciding the least worse option, In Collaborative Law parties are encouraged to lead the process by articulating and working towards their personal goals and desired outcomes.
The test of success in a Collaborative process is measured against the individual family life goals. That doesn’t mean that reference is not made to the legal framework that we are working in, it is just not the priority. This is very different from the litigation model where families have decisions imposed on them by a third-party decision maker with reference to the Family Law Act and previous cases.
The Collaborative Law process is not for every family and some of the things that you might want to discuss with your lawyer before commencing down the collaborative path might be the following:
1. Collaborative law is less expensive than contested litigation but is not an inexpensive process. The magic of the process is the involvement of a team of professionals but with the team comes additional costs. In addition to legal costs incurred by each party you need to cover the costs of the coach who attends every meeting and the financial advisor who might assist in valuations or helping the parties understand the assets of the relationship.
2. There is an investment of time. Again, the process does not require anything like the time commitment involved in litigation, but you will need to commit to meeting with your lawyer on a regular basis and then having team meetings. Generally, there are between 2 – 5 meetings for each collaboration and each meetings takes around 2 ½ hours. How regularly the meetings occur and over what period depends on your personal family circumstances but generally the process can be concluded in 3-6 months.
3. Collaborative law will not be suitable for you and your ex partner if there is not clear transparency of assets, income and any other matters that are essential to resolution of your dispute.
4. Collaborative law requires its participants to look beyond a simple matrix of what they want as individuals and asks them to consider the needs and desires of the family as a whole. Sometimes it is not possible to do this after a separation for all kinds of reasons that may be completely valid. The reasons people separate are many and complex. In collaborative law you are asked to answer the questions:
a. what do I want for my future;
b. what do I want for my children’s future;
c. what do I want for my ex-partners future;
d. what is a fair settlement in the context of all the participants needs and wants.
If you are not able to answer all the question with positivity, then collaborative law might not be for you. That doesn’t mean that you need to litigate or that finding an amicable solution to your dispute is out of reach, it might just mean that other options are better suited for your circumstances, and that is ok.
Find out more on other forms of alternative dispute resolution.
“Collaborative Law parties are encouraged to lead the process by articulating and working towards their personal goals and desired outcomes”