Collaborative Law might sound like an odd concept in the area of Family Law, particularly for matters that typically deal with separation and divorce. However, Collaborative Law is helping people negotiate and settle complex financial and child related matters in a timely manner without the need for Court.
Freeman Family Law takes on Collaborative Law matters. Graeme Freeman is a trained collaborative law lawyer (Collaborative Practice Course, Monash University).
It is no secret that the Australian courts are overburdened and this results in parties waiting months, maybe even years, for an outcome to their matter. This also leads to greater expense. As a result of the sometimes lengthy and complicated court battles, the consequences are often destructive for the people involved, both financially and emotionally. The flow-on effect on children must also be considered.
Collaborative Law is an approach that focuses on avoiding the need for courts at all, by ensuring that all involved are represented by a team of experts in order to reach an amicable and practical settlement. Collaborative Law has some similarities to mediation in that it relies on good conscience, full disclosure, and reaching mutually agreeable resolutions. Some key distinctions to mediation are as follows:
- At the outset the parties set out their goals and the process of negotiation and sign an agreement accordingly.
- Both lawyers should be trained in the principles of collaborative law and mediation principles generally. The fact that a lawyer takes on collaborative work is of itself a sign that he or she is committed to the process.
- The parties commit to avoiding litigation and it is agreed that the lawyers involved cannot represent their client if litigation ensues.
- Adversarial attitudes and ambit claims are avoided.
- The parties agree on joint experts to guide them through the process. This may include accountants, financial advisors and child counsellors.
- The parties are both present during negotiations and discussions with experts.
- The process is designed to achieve a holistic settlement in relation to financial and children’s matters that both parties are comfortable with and the future financial needs of the parties are addressed as much as possible.
How does Collaborative Law work?
A Participation Agreement or Collaboration Contract is the core principle of collaborative activity. This is a negotiated document that outlines the clients’ and their lawyers’ goals and obligations in the case. The Participation Agreement typically specifies that the parties treat each other with dignity, uphold confidentiality, share their concerns honestly, and reach a formal agreement without the threat of legal action.
A series of face-to-face consultations between all parties and their lawyers are arranged to reach a consensus, in which all issues are to be addressed frankly and in a non-confrontational way. Both partners’ lawyers must withdraw from the case if the parties are unable to find an understanding and court is the only option. This is a big disincentive to litigation.
The lawyers should receive specialised training in the collaborative process to ensure that they have the expertise required to effectively engage with both stakeholders. This usually involves post-graduate training and also relies on the experience of the lawyer concerned in resolving disputes.
The following is a typical Collaborative Law process:
- Each party is represented by a collaborative lawyer who has been educated in the process.
- The parties contract to attempt to avoid litigation and agree on the rules and goals and the process required to create the groundwork for problem solving and resolution. This includes the joint selection of neutral experts who can assist in the process.
- On request, all information is exchanged openly and honestly, maintaining an atmosphere of integrity, openness, and cooperation.
- Negotiations are conducted in a succession of face-to-face sessions attended by both lawyers and clients. Advice is sought from jointly appointed experts. An accountant for example can give advice on tax issues, business valuations and the structure of any settlement. A financial planner can advise the parties of outcomes that can optimise future earnings and financial security. A psychologist can guide the parties to a resolution on living arrangements for children that smooths the process and prioritises the children.
- The solicitors debrief with their clients after each meeting to review the activities of the meeting and the progress that has been achieved.
The number of meetings and time it takes to resolve a problem varies based on the magnitude and complexity of the problem and the progress achieved at each meeting. Negotiations will typically take anywhere from one to five months on average.
When a settlement is signed, the lawyers will draft a Settlement Agreement, which will be converted to a joint consent order application or they will draft a Binding Financial Agreement. Consent Orders are Orders drafted by the parties and submitted to the Court for approval. A Binding Financial Agreement is a contract signed by the parties and certified by the lawyers.
Is Collaborative Law right for me and my case?
Not all issues lend themselves to collaborative approaches to resolution. It could be suitable for you and your partner if you and your partner are ready to accept personal responsibilities in order to progress and achieve an agreement. You should also consider this process if you want to enter a just and amicable resolution for the good of your family in a safe and holistic manner, based on mutual trust.
Some other questions to consider include, are you and your partner willing to:
- Spare yourselves and your kids the stresses and hardship – both emotional and financial – that comes with litigation?
- Be frank and give full disclosure on financial issues?
Collaborative Law is ideal if the issues in dispute are complex or the parties wish to tie up every loose end. It is not viable if there has been family violence or if one party feels intimidated or there is otherwise a disparity in bargaining positions.
Lawyer-led mediation may be a better option. This depends on the facts of each case. A collaborative law solution takes longer but often can provide a more holistic solution and allows for the substantial input of neutral experts.
The collaborative process can’t provide a section 60I certificate (required before anyone can go to Court over parenting matters). This must be provided by a counsellor accredited to provide such a certificate (not a lawyer). However, as the parties usually reach agreement, such a certificate is rarely required.
What collaborative law costs
The costs of Collaborative Law can typically be anything from $10,000 to $40,000, including experts’ fees. This can be more than the costs of negotiated settlements or mediated settlements but is a better alternative in many cases. It is also a far less stressful and less costly process than going to Court. The parties need to agree at the outset how this is funded. Usually, it is from joint funds.
What if the process fails?
The Collaborative Law process has a high success rate. However, occasionally the parties still can’t reach agreement and feel that they have wasted their effort and money especially as they have to engage new lawyers. Our view is different. Even if the process fails, each party knows the other’s goals and arguments precisely and each party has received valuable independent advice from experts. This can save huge expense in the future. The ability of both parties to agree is critical to reaching an amicable settlement by Collaborative Law otherwise conventional methods, including litigation, might be the best option.
At Freeman Family Law, we are trained and accredited Collaborative Lawyers, meaning that whichever course you wish to take to settle your Family Law matter, we can help. We also have extensive alternative dispute resolution experience and the expert knowledge of the law to provide the best advice.
Contact us today to learn more. We can at an initial interview assess whether your case is suitable for a Collaborative Law solution.
