“Thanks very much again for all you did to help us reach agreement. It was a difficult process, much tougher than I had expected, but I was extremely glad you were there to give clarity and authority to the process and keep us all on track. You worked incredibly hard for us and rescued the process more than once. Despite the difficulties, looking back I am glad we chose the collaborative approach rather than the traditional court approach which I think would have been even tougher.”
The above is a direct quote from my client who, along with her husband, chose to resolve her financial claims on divorce using the collaborative process. We think it is a high recommendation of the process which acknowledges that, although it asks a lot of the clients (and the lawyers), it has enabled our client to look back and feel proud that she and her husband made that decision rather than taking the court or normal litigation route.
What is collaborative law and what makes it different from the traditional litigation process?
Any lawyer seeking to explain collaborative law will probably centre on its differences from the traditional litigation process, but for many clients these are matters of nuance:
- the duties of a lawyer are different, they are working with rather than against the other lawyer;
- they are not aiming for the best outcome for their client at the expense of the other party but seeking the best outcome for the family overall and for any children as a priority; and
- they have to be prepared to share their advice to their client with the other spouse and lawyer.
However the pivotal point for most clients is that if the process fails to reach agreement, then both of them have to move to new lawyers to take up their case. This is the case even if it is the actions of one party that breaks the process. This can seem harsh and many clients do not want to run the risk of duplicating costs and also losing the emotional investment they have made in their lawyer.
To my mind this is an essential feature of collaborative law, meaning that the lawyer has an investment in the success of the process. No lawyer likes to fail, and as the process itself is not about winning or losing, the lawyers’ goal becomes to achieve a positive outcome – a binding agreement – for the clients.
There are other practical differences:
- there are few or no letters sent between lawyers;
- all negotiations happen in the room with both clients and lawyers (called a 4-way);
- experts on pensions, financial advice or relationship counselling can be brought into the process and work for the couples, not simply for one of them;
- both the lawyers and the clients sign up to a contract confirming the confidential nature of the process, and stipulating the behaviour that is expected at the meetings and beyond.
Why is it described as a tough process?
The challenge in collaborative law is in dealing with emotive issues in the same room as your spouse, in a civilised manner. It can be painful to dismantle a marriage in this way and some people find having to discuss the consequences of a separation that they may not have wanted or even anticipated with their spouse, to be very difficult. It is also a reality that people can genuinely view things differently, whether that is why they believe the marriage broke down, or what they see as being needed in terms of income, housing, or time with children and that can make finding a solution that is acceptable to both tricky.
The help of a family consultant can be invaluable here but even where that does not happen, the lawyers are dealing with emotions and feelings that mean the process goes beyond the hard facts and figures on a page. This can be one of the great benefits of the process, as it allows a couple to identify what is important to them, which may be different from what a Judge or the lawyers would have placed as important.
The clients are invited at the beginning of the process to articulate why they have chosen collaborative law and what benefits they hope it will bring. The lawyers can then refer them back to these statements, if things are becoming rocky, to remind them of the goals set. All dispute resolution processes are about a level of compromise and, in collaborative law, that may go further than most. The clients are asked to consider how the outcomes they are discussing affect each of them and their children. Having lawyers there in the room also means that advice can be given as to the approach a Judge would take and where parties want to move away from that, what can be achieved and contained in binding orders of the court, and what cannot.
When is collaborative law not suitable?
There has to be trust between the parties that each of them is being honest. That can be hard where a marriage has broken down because of unfaithfulness but, in many cases, there can still be trust over financial issues.
Collaborative law is not suitable where there is any form of domestic abuse that would prevent one party being able to fully partake in the discussion on a level playing field.
It may not be suitable where one party has fixed ideas as to outcome. This should be investigated with that spouse’s lawyer as sometimes the exercise of reality checking can adjust someone’s thinking. However if there is a fixed point of principle then there may be no other option but for a Judge to impose a decision.
So back to the opening question:
Why choose collaborative law?
Do you want to be able to say to yourself and to your children that you and your spouse were able to sit down and sort out arrangements with which both of you were happy? Do you want to be able to continue to work with the other parent to bring up your children in a co-operative way, attending future life events for the children and other family members in a positive and non-confrontational atmosphere?
Collaborative law cannot wave a magic wand and create the perfect post-separation relationship but it gives couples the best chance of achieving that. There is a benefit to knowing that your voice has been heard in the process, that you have discussed the things that were important to each of you and that you have done your best to resolve disputes in a civilised manner, with a view to looking to form a new future for each of you that, whilst being different from what you had previously planned, can still be good.