Your Questions Answered. . .
Couples who are considering using collaborative family law for resolution of their dispute tend to have a number of questions regarding the process. This is perfectly normal, especially since most people assume that separation has to involve court action for parties to reach a “fair and equitable” solution.
Listed below are a few common questions, with answers, that may help you to decide whether collaborative family law is an option you would like to pursue.
What is Collaborative Family Law?
In a collaborative family law process, clients and their respective lawyers agree to work together to find a fair solution to whatever financial or child-related issues need to be addressed without involving the court.
An agreement is signed between the parties and their respective lawyers stipulating that the case will not be referred to court and a satisfactory settlement is then negotiated through a series of meetings, sometimes involving other independent experts.
Once a settlement agreement has been reached, the parties can elect to have the agreement sent to a court to be made into an order.
How does Collaborative Family Law work?
After deciding that collaborative family law is appropriate in your case, you, your partner and your lawyers will all sign a Participation Agreement setting out the ground rules for the collaborative process.
The majority of the negotiations between you and your partner will then take place at “4-way” face-to-face meetings between you, your partner and your respective lawyers. It is at these meetings that the issues of importance to you and your partner are identified and negotiated.
The meetings are minuted and action points for future meetings agreed. Where appropriate, you will be encouraged to draw on the skills of other specialist advisers, such as accountants to assist with financial disclosure, or child counsellors to discuss an issue which may have arisen in relation to the care of your children.
Once a settlement is reached, the lawyers will draw up a Settlement Agreement which will usually be submitted to the court for approval and made into a consent order.
Is the process confidential?
All professionals involved in the collaborative process are bound by their own professional conduct rules and have a strict duty of client confidentiality.
Any discussions or documentation, (with the exception of financial disclosure documentation - see below), are legally privileged and conducted on a “without prejudice” basis which means that they cannot be referred to in court.
This confidentiality will only be overridden if any of the experts involved have a professional obligation to make a report to a relevant authority, for example, if a child is considered to be at risk.
If the collaborative process fails, you and your partner may not use any of the information or documentation generated for the purpose of court proceedings other than that relating to financial disclosure.
What happens if my partner is dishonest or doesn’t disclose everything financially?
This can of course happen, as it does sometimes in mediation or in the conventional legal process. Under the terms of the Participation Agreement, the lawyer must withdraw from acting for their client if the client has withheld or misrepresented information intentionally, or is participating in the process in bad faith. Likewise, it is open to your lawyer to advise you to withdraw from the process if they do not consider that your partner, (or indeed their lawyer), is keeping to the terms of the agreement.
If you discover, after a settlement agreement has been reached, that your partner has failed to disclose relevant information, then collaborative family law is no different from any other negotiated settlement. If the outcome of the settlement would have been different had the correct information been available, you can seek to overturn the agreement, even after it has been approved by the court.
Why can’t we go to court if it looks as though the collaborative process isn’t going to work?
The reason that collaborative law has been successful in other jurisdictions is that the lawyers are disqualified from acting for their client in court should collaboration fail. This encourages all parties to try and achieve settlement without the threat of court proceedings when things become difficult.
By agreeing at the outset not to go to court, you, your partner and the lawyers are encouraged to work hard to reach a settlement which has your family’s best interests at heart.
What happens if we can’t agree on something during negotiations?
If an issue arises during the negotiations that cannot be resolved by you, your partner and your lawyers, an outside professional will generally be called in to help. Depending upon the nature of the issue, it could mean the involvement of a counsellor, child specialist, financial adviser or accountant. In most cases, an independent expert can review the circumstances and provide information that assists in the resolution of the matter.
If an agreement still cannot be reached and the case needs to be referred to court for a decision, then your lawyers and the experts must withdraw from the case completely. You and your partner will then need to appoint other lawyers to represent you in court and your collaborative lawyer and the experts cannot even be witnesses in your court case.
How much will it cost?
As with the conventional legal process, different lawyers have different charging rates. Your lawyer will explain to you the basis of their charging structure and will go through their firm’s terms of business with you.
Generally speaking, as long as you and your partner act in good faith, provide the information requested of you within the timescales agreed and cooperate in the process, the collaborative process will be quicker and cheaper than the traditional, court based process.
The issue of how the costs are to be met can be addressed at the first 4-way meeting. Unless there is an agreement to the contrary, however, you and your partner will each be responsible for your own solicitor’s costs and will normally be invoiced monthly.
Is my case suitable for the collaborative process?
Collaborative family law is not for everyone.
It will be of interest if the following are important to you and your partner:
You want a dignified, non-aggressive resolution of the issues;
You have children and want to put their needs and interests at the forefront;
You do not wish to incur the costs and animosity generated by court litigation;
You want to retain control over decisions regarding your financial settlement and parenting arrangements (whilst taking advice from experts);
You need, or would like, the assistance of a lawyer to help you negotiate in face-to-face meetings.
Collaborative family law will not be the right option for you if:
Your main objective is to “seek revenge” on your partner;
You are looking for a “soft option”;
You think that the process will allow you to “out-manoeuvre” your partner;
You are hoping to get away with giving less than a full and frank financial disclosure!
In cases where there is a history of domestic violence or other abuse, the collaborative family law specialists will need to consider very carefully whether the case is suitable for the collaborative process. They are likely to insist on the involvement of other professionals in the process to ensure that the interests of you, your partner and any dependant children are adequately protected and represented.
How can we get a collaborative case started?
It is essential that both parties use lawyers that have been trained in collaborative family law, which is why groups like Greater Sydney Collaborative Law have formed.
If you think that your partner may be interested in trying collaborative law as a way of resolving your dispute, refer them to this website or request a brochure for them to look at. You and you partner can then select your preferred lawyers from within the group, knowing that they all have the right training and background to handle your case.