ADR seems to be a new buzz word in family law at the moment. Alternative Dispute Resolution has been mentioned much in context of family mediation, as mediation is an example of ADR. However, an alternative route to mediation is collaborative divorce.
I’ve talked about collaborative family law a number of times before but I think in the current climate there has been some confusion around collaboration, mediation and ADR, so it is worth mentioning again.
A big difference between collaborative divorce and mediation is that mediation involves a (hopefully) trained mediator sitting down with the two individuals to look at where there is common ground. They can help lead the estranged couple through sticky areas of negotiation with the aim of reaching a settlement acceptable to both parties without the need to go to court. If this does not work, other routes may still need to be explored and court time may ultimately be needed. In most cases the individuals will go to mediation having consulted a family lawyer about their case and / or they will need the help of their lawyer to draft a legally binding agreement after the mediation.
Collaborative divorce involves both parties and their respective solicitors signing up at the start to work on a collaborative process. This means they agree to work to a solution without going to court. Four-way meetings can then take place with both parties having their lawyer present. The key difference is this offers legal representation in discussions.
One of the main reasons perhaps that collaborative divorce still hasn’t kicked off in the UK as it has elsewhere is that both sides must have a lawyer trained in the collaborative process – and they are not always easy to find. One party may have a solicitor they have used in the past now and want to stick with them. If they do not have collaborative law training, the route of a collaborative divorce is not open to the couple.
The process can be more successful in the long term than using the traditional court based approach as the parties are more likely to adhere to resolutions that they have reached themselves through negotiations rather than having ones imposed on them by the court. Once agreement is reached, the lawyers can draw up a document that can then be submitted to the court for approval, giving it a legal seal of approval.
It can also be less costly as court time is not needed. However, legal representation is essential.
Collaborative law has proven to be particularly useful in cases where there is a family business as a going concern, with farming being a good example. There is a clear advantage to all in a business enterprise continuing while details are worked out on how assets will be split and how things will function in the future.
What makes a great collaborative lawyer?
Well, a whole raft of things that are applicable to any family lawyer really. None of these attributes will come as a surprise but all together will ensure you get the best collaborative representation.
Experience – the collaborative approach is a different one from the norm. Experience in dealing with a number of family law cases will ensure the person is aware of the best approaches to take and the pitfalls you may encounter.
Expertise – fairly obvious but they do need to have undergone the specialist collaborative law training. Ask when they completed the training and their commitment to continuing professional development.
Keeping up to date – when that training is completed, you want to know that your chosen solicitor is someone who discusses issues with fellow collaborative solicitors, follows new techniques and guidelines, and generally keeps an eye on how family law judges are behaving in this sector of the industry.
Good listening skills – this goes for all lawyers and is something you can generally get a feel for when first meeting them or speaking to them on the telephone.
Good negotiating skills – all lawyers are negotiators but it is the conciliatory approach that must be adopted by collaborative lawyers that is vital. Delicate negotiations will be needed to ensure the best agreement is reached for you. Part of this negotiation may be privately with you rather than with the other party and their lawyer, ensuring you have realistic expectations of what can be achieved.
Collaborative divorce is not for everybody but if you do go down this road, ensuring you have a great collaborative lawyer is the best way to get a positive outcome for you.
Is a collaborative approach to divorce right for me?
Listed here are the 10 things you should know about collaborative family law before you decide which approach to take.
- Collaborative law is a form of alternative dispute resolution for divorcing couples who need strong legal representation, but would like to avoid going to court, the clients agree in advance not to take matters to court and they sign an agreement to that effect.
- Collaborative law is different from Mediation because a Mediator does not advise or represent the client and the clients need to seek advice from their solicitors during the process in any event.
- Each party appoints their own lawyer but instead of conducting negotiations by letter or phone you meet your partner together with your lawyer to work things out face to face, known as ‘4 way meetings’.
- Unlike a traditional divorce, collaborative law offers the client the option of retaining a team of divorce professionals, for, eg your divorce lawyer (which is essential in this process); a financial advisor to advise on the financial implications of any agreements or a family consultant who can support you and your children through the emotional terrain that sometimes exists.
- The process is not driven by a timetable imposed by the court, so to a large extent the process can be built around the client’s individual timetable and priorities.
- The process can be more successful in the long term than using the traditional court based approach as the parties are more likely to adhere to resolutions that they have reached themselves through negotiations rather than having ones imposed on them by the court.
- Once agreement is reached, the lawyers can draw up a document that can then be submitted to the court for approval. You and your former partner will not need to attend court throughout this whole process.
- The Collaborative process can be significantly less expensive than those traditional cases that progress to final hearing.
- As well as reducing legal costs, it can also reduce the heartache and conflict which sometimes go hand in hand with marriage breakdown. In many cases, it is not the divorce itself that does so much harm to families but the way in which people divorce.
- Resolution, the trading name of the Solicitors Family Law Association are responsible for training Collaborative lawyers and over 1000 have qualified in the last 6 years, you can search for a member at www.resolution.org.uk
An experienced family law practice should be able to advise on whether or not the collaborative approach is right for you.