Plain English Guide to Collaborative Family Law

Coleman & Greig is pleased to offer collaborative family law as a new and client-centred approach to the resolution of family law disputes. Collaborative family law offers a fresh and dignified approach to resolving the issues that arise out of a relationship breakdown without involving the court. This Plain English Guide provides an overview of how the collaborative law process works, but we encourage you to contact one of our family law solicitors to provide you with a more detailed explanation of this new and innovative solution.

What is Collaborative Family Law?

In a collaborative family law process, the clients and their lawyers agree to work together to find a fair solution to whatever financial or child-related issues need to be addressed without involving the court.

A collaborative approach allows for a greater degree of co-operation between a range of professionals involved in helping families. Clients involved in a collaborative process will have access to the skills of child specialists, counsellors accountants and financial advisers who can bring their expertise to the process when necessary, thereby freeing up the lawyers to concentrate on helping their clients in the negotiations and focusing upon shaping a fair settlement.

Collaborative family law has been practised in the USA and Canada since the early 1990s and more recently in UK, Ireland and Wales. It is now recognised as a successful means of alternative dispute resolution.

What does Collaborative Family Law involve?

You and your partner will each retain a specialist family lawyer to advise you throughout the process.

Your lawyer will discuss with you in your introductory meeting or telephone call whether your case is suitable for the collaborative process.

You, your partner and your lawyers will all sign a Participation Agreement setting out the ground rules for the collaborative process and stipulating that if either client commences court proceedings, both collaborative lawyers will be disqualified from representing either client.

Underpinning the collaborative process is an understanding that you and your partner, (and your respective lawyers), will act in good faith, be open and honest in your dealings with one another and respect the fact that different views will need to be expressed to achieve a fair settlement.

The majority of the negotiations will take place at “4 way” face-to-face meetings between you, your partner and the lawyers.

Correspondence between lawyers is kept to a minimum. By being present throughout the negotiations, you and your partner retain control, the scope for misunderstandings is reduced and you will be assisted in communicating with each other in a nonconfrontational way, which is particularly important if you are parenting children together.

The meetings are minuted and action points for future meetings agreed. Where appropriate, you will be encouraged to draw on the skills of other specialist advisers, such as accountants to assist with financial disclosure, or child counsellors to discuss an issue which may have arisen in relation to the care of your children.

Once a settlement is reached, the lawyers will draw up a Settlement Agreement which will usually be submitted to the court for approval and made into a consent order.

What about confidentiality?

All professionals involved in the collaborative process are bound by their own professional conduct rules and have a strict duty of client confidentiality.

Any discussions or documentation, (with the exception of fi nancial disclosure documentation see below), are legally privileged and conducted on a “without prejudice” basis which means that they cannot be referred to in court.

This confidentiality will be overridden where any of the professionals involved has a professional obligation to make a report to a relevant authority, for example, if a child is considered to be at risk.

If the collaborative process fails, you and your partner may not use any of the information or documentation generated outside the collaborative process other than that relating to financial disclosure.

What happens if my partner/spouse doesn’t give a full and frank financial disclosure?

This can of course happen as it does sometimes in mediation or in the conventional legal process. Under the terms of the Participation Agreement, the lawyer must withdraw from acting for their client if he/she has withheld or misrepresented information intentionally, or is participating in the process in bad faith. Likewise, it is open to your collaborative family lawyer to advise you to withdraw from the process if they do not consider that your partner, (or indeed their lawyer), is keeping to the terms of the agreement.

If after a settlement agreement has been reached in collaborative law, you discover that your partner has failed to disclose relevant information, then collaborative family law is no different from any other negotiated settlement. If the outcome of that settlement would have been different had the information been available, it is open to you to seek to overturn the agreement, even after it has been approved by the court.

Why can’t we go to court if the collaborative process doesn’t work?

The reason that collaborative law has been successful in other jurisdictions is that the lawyers are disqualified from acting for the client should collaboration fail. A disqualification agreement underlines the fact that all the parties are attempting to achieve settlement without threatening or being subject to the threat of court proceedings when things become difficult.

By agreeing at the outset not to go to court, you, your partner and the lawyers can be encouraged to reach creative settlements, (of course having regard to the legal position), but having you and your family’s particular interests at the forefront of any settlement proposals.

Is my case suitable for the collaborative process?

Collaborative family law is not for everyone. It will be of interest if the following are important to you:

You want a dignified, non-aggressive resolution of the issues;

• You and your partner have children and wish to reach a resolution by agreement with their needs and interests at the forefront;
• You do not wish to incur the costs and animosity generated by court litigation;
• You value retaining control over decisions about restructuring your financial arrangements or arrangements in relation to the children, but with advice from experts;
• You do not wish to hand over such decision making either to your lawyer or to a judge;
• You need the assistance of a lawyer to help you negotiate in face-to-face meetings.

Collaborative family law will not be the right option for you if:

• Your main objective is to “seek revenge” on your partner;
• You are looking for a “soft option”;
• You think that the process will allow you to “out-manoeuvre” your partner;
• You are hoping to get away with giving less than a full and frank financial disclosure!

In cases where there is a history of domestic violence or other abuse, the collaborative family law specialists will need to consider very carefully whether the case is suitable for the collaborative process and are likely to insist on the involvement of other professionals in the process to ensure that the interests of you, your partner and any dependant children are adequately protected and represented.

How much will it cost?

As with the conventional legal process, different lawyers have different charging rates. Coleman & Greig will explain to you the basis of our charging structure and will go through our firm’s terms of business with you.

As long as you and your partner act in good faith, provide the information requested of you within the timescales agreed and cooperate in the process, the collaborative process will inevitably be quicker and cheaper than the traditional, court based process.

The issue of how the costs of collaborative process are to be met can be addressed at the fi rst 4 way meeting. Unless there is an agreement to the contrary however, you and your partner will each be responsible for your own solicitor’s costs and will be invoiced monthly so that you receive a regular update as to the costs position.

How can we get a collaborative case started?

Other solicitors in Sydney and in other areas also offer collaborative family law as a part of their family law services. It is essential that both parties have collaboratively trained family lawyers. Most collaborative family lawyers (and other professionals) belong to practice groups.

If you think that your partner may be interested in trying collaborative family law as a way of resolving your dispute, we can write to your partner suggesting collaborative family law and send him/her this Plain English Guide, or you can discuss this with your partner directly.

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