There is still a lot of confusion about collaborative family law and alternative dispute resolution (ADR) generally. The Government is moving to help this by dropping the “alternative” from the name so it will just be termed dispute resolution. I’m sure there must have been a committee agonising over this for months but it's not really likely to help that much is it?
As I have mentioned previously, the formal collaborative law approach has failed to catch on in the way that it has done in the United States where it originated. However, there does seem to be a concerted effort to get people to at least discuss it as an option.
So, in a nutshell, what is it and who will it best suit?
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. It differs 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 collaboratively trained family lawyer but, instead of conducting negotiations by letter or phone, you meet your partner together with your respective legal representatives to work things out face to face, known as ‘four-way meetings’.
The big benefit is that it can help keep a lid on costs. It is often when couples end up with numerous court hearings that fees can suddenly spiral. There is also no timetable set around the court’s time so things can move along swiftly if there is the desire to do so from all parties involved. In addition, there is also a suggestion that district judges are supposed to approve settlements reached more quickly. However, it is not all good news.
The collaborative approach is not a cheap option. This may sound strange in light of what I have just said about keeping a lid on costs but it is a case of paying a bit more initially to safeguard against higher costs later. It is therefore more common for couples with high net worth to instruct collaborative lawyers. It also means both parties have to be really committed to the process – it needs two estranged people to agree and this is not often easy.
Unfortunately, some clients still like to hide behind solicitors so the collaborative approach is unlikely to be popular with them. And it relies on an active “pod” of collaboratively trained lawyers in a specific area to allow both sides to have a choice of solicitors to instruct.
Perhaps the biggest challenge though is educating more people about it. There needs to be more of a resource for people to tap into to find out about all these things. This is what we have tried to do with the Woolley & Co website (find out more here) and what the Government plans to do with a family law information hub later this year, we are led to believe. Whether that will finally help it make a breakthrough, only time will tell.