Collaborative law is a contemporary way of resolving legal disputes and is particularly suited to family law matters. As an alternative to traditional (and often adversarial) family law processes, collaborative law targets the parties’ emotional and financial interests, as opposed ‘rights and entitlements’, through a structured negotiation process.
This conciliatory approach is suited to family law matters as it has the potential to preserve the parties’ relationship. It is ideal when children are involved given that the parents are likely to have mutual involvement regarding their future care and welfare.
Our lawyers will happily endorse a collaborative approach to resolving your family law matter if you consider it appropriate for your circumstances. We will explain the process and advantages to you, as well as any disadvantages, so you can make an informed decision.
How does collaborative law work?
Collaborative law involves negotiations between the affected parties, their respective family lawyers who are trained in the collaborative process and, where relevant, other professionals such as psychologists, counsellors and therapists. Negotiations are confidential and transparent, and all parties must be fully committed to the process.
Parties involved in a collaborative law approach are required to enter into a written agreement requiring them to make full and frank disclosure of all relevant issues to resolve the matter without recourse to litigation.
Although the parties’ respective lawyers represent their clients individually, they must make a concerted effort to assist the family unit as a whole, to reach an optimum outcome.
The parties must agree not to threaten litigation and lawyers must not advise clients to threaten or commence litigation. If an application is made to commence proceedings in Court the agreement is terminated and the lawyers for both parties may no longer represent their respective clients.
The obligations imposed by the agreement reinforce the parties’ commitment to the collaborative law process. With litigation essentially ruled out (unless the agreement is terminated, in which case the parties will have the expense and inconvenience of finding new representation), there is a vested interest in reaching mutual agreement, as opposed to winning and losing.
Once an agreement is reached, it can be legally documented for the parties to approve and sign.
Benefits of collaborative law
- The parties have control over their own matter and are present during all negotiations – they are able to set their own agendas rather than have directions and hearing dates determined by a Court.
- There is potential to minimise costs, delays and the stress and anxiety of being involved in Court proceedings.
- Settlements may be reached which are less restrictive than what might be ordered by a Court. Parties are not confined to technical legal issues and rules of evidence – they can negotiate on non-legal matters which may otherwise be considered irrelevant in litigated matters.
- Because collaborative law is non-adversarial, there is no winner or loser, allowing the parties to maintain dignity and respect for each other.
Potential pitfalls of collaborative law
- Whilst collaborative law is open to all family matters, it may not be suitable if one or both parties are antagonistic, violent or have drug, alcohol or psychological problems. Safety issues and trust concerns will be a barrier to effective negotiations.
- All parties must be committed to the process – if it fails and the agreement is terminated, the parties must retain new lawyers and potentially ‘start over’.
- Court rules that require strict compliance, and procedures enabling access by the parties to information, are removed from the process and replaced with negotiations based on good faith – there needs to be sufficient trust between the parties to facilitate appropriate disclosure.
Collaborative law is not for everyone but worth considering as an alternative way to determine your family law issues. Our experienced lawyers can assist you in making this decision or in finding other ways to resolve your family law matter.
