In a growing trend, more separating couples are looking to resolve their matters as amicably as possible without going to the Family Court by taking part in a “collaborative divorce”, where couples avoid protracted court proceedings and want to preserve positive future family connections with the children involved.
Collaborative family law practice has created a new role for lawyers to resolve family law issues respectfully and openly without resorting to court action. It incorporates skills similar to mediation, lawyers working together (at times with other collaboratively trained professionals) to facilitate child- and family-focused conversations between parties, determined to arrive at mutually acceptable negotiated settlements. The process hinges on confidential and transparent negotiations.
It has an interest-based, team approach, as opposed to rights-based or adversarial. The process is dignified and discrete, permitting the parties to stay in control, a truly significant part of assuring 'the most ideal' settlement result. Both partners can focus on their specific needs and circumstances, empowering them to move ahead with their lives.
Since collaborative family law is non-adversarial, it creates a conducive environment for a series of meetings and support from collaboratively trained lawyers. Also included depending on the requirements of each matter are financial planners, accountants and psychologists in ways that best suit the clients.
One can discuss the terms and details of their matter, permitting them a say in the pace and how your matter resolves. Legal advice and management of the process are provided by a collaboratively trained legal practitioner who also provides dispute and conflict resolution. They provide clients access to information and advice similar to the traditional approach to family law matters.
Length of the Collaborative Family law process
The period is dependent upon you. It may take longer for some couples while exceptionally fast for others. Numerous things affect or influence this; how much information is available from both of you, whether you are close to an agreement or whether there exist differences that need resolution. You may decide to maintain a steady momentum or ‘pause’ the process while other things happen.
The court is naturally a lengthy process with most cases taking longer than a year to conclude. Even traditional negotiation is a tedious process. Cooperating as a team, you are bound to make faster decisions and rapidly reach a resolution. With greater certainty, this avoids protracted court proceedings and preserves positive future family connections.
What is distinctive about Collaborative Family law?
It revolves around honesty and cooperation, in the absence of the threat of litigation. All the issues raised and discussed through the collaborative law process are confidential. To this end, the process is similar to an extended mediation process, allowing discussion and conclusion of issues over several meetings. If parties begin the collaborative process then choose to stop without resolving the family law matter, they will be required to retain new legal representation.
This ensures future attempts to resolve a matter collaboratively or through litigation are not prejudiced. On the off chance that the collaborative process fails (which is statistically rare), the two lawyers and any other experts must withdraw from the matter. You can any case decide to take to Court.
Why choose the Collaborative family law process?
In the aftermath of already dealing with the emotional fallout of a broken-down relationship, the Court process can be an overwhelming, costly and time-consuming experience. Since a collaborative approach focuses on the interests and needs of your particular circumstances, it provides a more time-effective alternative. It is also mostly cheaper than adopting the traditional method.
Above providing a conducive environment where individual circumstances can be better perceived and represented, the use of collaborative law offers:
you and your previous partner the ability to make the final decision;
confidential and open conversations;
legal support all through the interactions, with contributions from financial, child and mental health professionals in the case if retained;
a conclusive and enforceable result.
Who participates?
Every individual has a lawyer who will consistently be in the negotiations to comprehend what is important to you and guarantee consideration. The most important consideration for a lawyer in Collaborative Family Law is to ensure they are committed to the process. Having good training and experience helps.
With that in place, you can be sure things that are important to you, which may not be considered in conventional negotiations or a Court, are fully articulated. The two lawyers collaboratively help you reach an agreement with creative solutions that are always up for consideration. Other collaborative experts such as; accountants, valuers, psychologists and even divorce coaches can be engaged on a case by case to assist you to get the best result.
Be that as it may, there are conditions where collaborative law would not be a fitting method for settling your family law dispute. For instance, if there has been a violent past or there is a current and clear power imbalance between couples. In such cases, it is improbable collaborative family law will be appropriate for you and your family.
Benefits of collaborative family law
As an alternative dispute resolution process, the collaborative process has many advantages.
Both clients have skilled and creative legal advisers through each stage of the process to reach creative settlements. Your lawyer is always at your side, explaining and clarifying issues to help you to accomplish your goals through cooperation and agreement.
both clients spend less money and time than in other processes, as going to Court.
In advance, both clients and their lawyers agree to work only toward an acceptable settlement to both parties. There cannot be a threat of litigation and neither partner will be permitted to play games or take or exploit one another.
The lawyers and their clients share a financial incentive to ensure the Collaborative Divorce Process works. The lawyers have not attained their goal unless they assist you in creating a mutually beneficial arrangement and are “out of a job” if the process breaks down.
The process and outcome are of great concern to the lawyers and rather than work as “opposing parties,” the clients and lawyers work together as members of a settlement team.
What does the process involve?
Collaborative Family Law is about cooperation, not confrontation. It begins with both you and your partner retaining collaboratively trained family lawyers. It is a problem-solving process through four-way meetings by both parties and their lawyers working towards mutual understanding. The suitability of your matter for a collaborative approach is determined by your lawyer at an initial meeting.
If suitable, the collaborative family law process is chosen and typically includes:
The Signing of a Participation Agreement
At the beginning, the ground rules and objectives of the collaborative process for all parties are established by signing a Participation Agreement. It requires that everybody, including the lawyers, officially agree not to proceed to court. This step is important. It allows for open, candid conversations without prejudice, meaning nobody can resort to threats of proceeding to court.
Face-to-Face Meetings
Discussions fundamentally happen confidentially face-to-face involving you, your former partner, lawyers and where fitting, different experts such as accountants, psychologists and child counsellors. Presence in these meetings permits you to raise issues important to you, ask questions and get clarifications. This limits misunderstandings, giving you greater control over the outcomes. Solutions are examined and considered in the best interest and wellbeing of both parties.
Finalising Agreement Reached
Once documented by the lawyers, any agreement reached through the means the Collaborative process is binding and enforceable to the same extent as a Court decision. From that point, lawyers prepare all necessary documents to formalise the agreement. This may be by way of Consent Orders submitted to the Court for approval or via an endorsed Binding Financial Agreement.
Lawyers will disclose that it can take years to resolve contentious cases and the costs can build up to hundreds of thousands of dollars in legal and professional fees. Proponents of collaborative family law say for most couples the process can take typically three or four meetings to reach a conclusive agreement with significantly moderate fees. Also, it is more likely the process leads to workable resolutions for the whole family. This can help in the preservation of family connections, reducing stress for the adults and any children that may be affected.
Small wonder there has been a rise in preference for collaborative family law services. It is also reflective of a general trend towards the use of alternative dispute resolution, incorporating aspects of mediation and arbitration. While Collaborative Family Law by definition exists outside the confines of the court process, the Family Court is expanding its resources to accommodate for other types of dispute resolution.
@Paul Barrett of Absolute Wealth Advisers is one of Australia's most experienced Private Wealth Managers. He is a financial expert in high net wealth divorce, estate management and inheritance. Contact him here