Most of us know someone who has been through a difficult divorce, juggling family life and work along with the pain and anguish of awaiting a family law decision in the Federal Circuit and Family Courts across Australia.
It is no secret that the Australian judicial system is overburdened with too many matters and not enough resources to always resolve litigants’ issues in a timely and cost effective way. The results are often devastating for the parties involved, financially, in terms of legal costs, and emotionally as a result of often long and protracted legal battles. The flow on impact to children can also not be ignored.
Enter a new process becoming increasingly popular with people who are dissatisfied with the traditional litigation process, known as Collaborative Law. The collaborative process avoids the Court entirely, ensuring all parties are supported by a team of professionals to come to a resolution that works for everyone and is as stress-free as possible.
So what is Collaborative Law and what might it mean for the future of family law and divorce proceedings?
What is Collaborative Law?
Collaborative Law is a refreshing new approach to resolving legal issues. It’s similar to mediation in some ways, in that it is reliant on good faith, full disclosure and achieving amicable resolutions that are agreed by all parties. The main difference is that in Collaborative Law, practitioners each have their own lawyer. In mediation, the mediator is a neutral third-party, assisting both parties in reaching an agreement. In Collaborative Law, each party is represented by their own legal representative who is collaboratively trained.
How does it work in practice?
There are generally two types of Collaborative Law: Lawyer-only and Interdisciplinary. In the lawyer-only model, the case has two clients and two collaboratively trained lawyers. Interdisciplinary Collaborative Law takes the model a step further and gives clients the option of including other professionals on the collaborative team, for example a financial specialist or child specialist or counsellor in some cases.
The central tenet of collaborative practice is what is called a Participation Agreement or Collaborative Contract. This is a signed agreement setting out the expectations, rights and responsibilities both of the clients and their lawyers throughout the process. The Participation Agreement usually states that the participants will behave respectfully, maintain confidentiality, frankly express their concerns and reach written agreement without the threat of court proceedings.
To reach an agreement, a series of face to face meetings are held with both partners and their lawyers, in which all issues are to be discussed openly and in a non-confrontational manner. If the partners are unable to reach agreement and court is the only alternative, both partners’ lawyers must withdraw from the case. In those circumstances, the lawyers cannot act for either party in contested litigation. This ensures that when a party hires a collaborative lawyer, they are 100% committed to settling the case collaboratively. Such lawyers should be specifically trained in the collaborative process to ensure they possess the necessary skills to successfully engage with all parties.
Is my case suitable for collaborative practice?
Not all matters are suitable for collaborative methods of resolution. It can be appropriate if you and your partner:
- Are willing to take personal responsibility in order to move forward and reach an agreement
- Would like to reach a fair and amicable agreement in a healthy and holistic manner for the benefit of your family
- Wish to spare yourselves and your children from the stress and emotional hardship litigation can cause
- Understand the necessity to be frank and give full disclosure on financial issues
Coming to an amicable resolution through Collaborative Law really hinges on the parties’ willingness to compromise. If you’re seeking vengeance, or are trying to avoid giving away certain financial information to your spouse, then it may be better to pursue traditional divorce proceedings instead. You can find out more about the process here.
How do you agree a settlement?
The process of Collaborative Law is normally as follows;
- Each party is represented by a trained collaborative lawyer
- Contract is signed
- The foundations are laid for optimum communication and problem solving between spouses and their advisors
- Lawyers will work with their clients to best understand their circumstances, needs and desired outcomes
- Information is shared fully and freely on request, retaining an environment of honesty, transparency and collaboration
- Negotiations take place in a series of face to face meetings with both lawyers and clients present
- Following each meeting, the solicitors debrief with their clients to discuss the events of the meeting and the progress that has been made
- The amount of meetings and timescale to resolution vary depending on the complexity of the matter and progress made in each meeting. Typically negotiations can take anywhere from one to eighteen months
- Once a settlement is reached, the lawyers will typically either draw up a Settlement Agreement which will be converted into a joint consent order application and sent to the Court for approval and/or converted into a Binding Financial Agreement
What happens if we can’t reach an agreement?
The purpose of collaborative law is to stay out of the family court, allowing you and your partner to decide the best outcome for your family, not a judge. When it proves difficult, your team work harder with you to find solutions that allow you to reach an agreement. That being said, either or both spouses can terminate a collaborative divorce at any time and it is then up to the spouses to determine how to proceed – inevitably by filing an application with the Court.
If you choose collaborative law as the method for ending your marriage and finalising your obligations and agreements, we recommend that you go into it with a commitment to succeed. If you don’t have that mindset from the outset, or have another reason that would prevent you from being as open, honest and communicative as possible, it may be better to find a different route.