Most separating couples will want their solicitors to try to negotiate an acceptable settlement on their behalf, and if that does not work one of them may take it to court for a judge to decide. An experienced Family Law Solicitor should be able to negotiate in a way that minimises conflict as much as possible. However, no matter how hard everyone may try, in many cases couples inevitably become polarised into two opposing sides, which makes it much more difficult to negotiate a settlement, which is truly beneficial for everyone, concerned. For many years people have tried to avoid the stress and conflict of court cases by going to mediation, a process in which both parties appear before an impartial mediator who helps them to find their own solution. People can find this an extremely challenging process, and quite frequently the parties express concern that the mediator is biased, even when this is not the case.
A new way of resolving conflicts has now been developed, and this is to use what is known as a Collaborative Family Law Process. It is particularly helpful where there are children involved and parties wish to minimise any upset to them or other loved ones. The process is about allowing a separating couple to reach their own agreement with appropriate support from professionals.
Collaborative Family Law is a process where there is no mediator and each party has their own Solicitor, but both clients and Solicitors agree to work together to find the best settlement for everyone. In a conventional court case, or even in a mediation, it is very easy to get entrenched and to stoke up feelings of mutual hostility. In Collaborative Family Law everybody works together in an atmosphere of mutual respect and willingness to focus on the best way forward, rather than on individual interests. Parties still have the one to one interaction with their own Solicitor who is able to advise and protect them, but there is a greater focus on finding out what is really important and devising a solution to meet the wider needs of both parties. It can also be a good way to protect children from the harm associated with court proceedings.
The process can involve giving up small things in order to reach a better overall solution. It can be challenging, and is not necessarily easier or cheaper than conventional representation. However, it has been shown to be an effective and satisfying way to resolve things. Collaborative Family Law means that the clients are intrinsically involved in finding the solution to any difficulties and can be a bit more immediate than conventional representation.
It is a fundamental requirement that the parties agree that they will not go to court or even threaten to do so. If the process breaks down and court is the only way forward, both Solicitors are barred from any further involvement in the case, and the parties must have new Solicitors.
Collaborative Family Law can be used to negotiate childcare arrangements, to negotiate financial settlements or deal with any part of Family Law in which the parties and Solicitors are willing to act. At the heart of it is the wish to work together to meet the needs of both parties. However, it is not going to suit every case, and any Solicitor taking on a case must carefully consider whether the case is suitable. The parties both have to be willing and able to participate on a reasonably even footing.
It involves special skills in guiding negotiations and managing conflicts which are additional to the skills used in a conventional court case. For that reason the solicitors must undertake special training, and only solicitors who have done so can participate.
The Collaborative movement is now international and cuts across several professions. It is possible to involve other Collaborative practitioners or experts. For example, the parties could involve accountants, financial advisors, counsellors, architects, or surveyors if they have had the training and the parties agree that it would be helpful. It is all about setting up an environment where communication becomes easier and participants can use a problem-solving approach to identify and address the interests and concerns of everyone involved. It cannot sort all difficulties, but it can set up an environment where it is easier for a separating couple to find their own solutions in a supportive and respectful environment.
The way it actually works is for the Solicitor and the client to first discuss what the Collaborative Process is all about. If it seems suitable, the Solicitor will contact the other Solicitor instructed and if both are trained in collaborative practice they arrange an agenda for a first four way meeting. At that meeting everyone involved is present, and the solicitors make sure that everyone understands the rules. A contract is then signed binding everyone to use the Collaborative Process. After that the parties can decide what the next steps will be, and there may be further meetings between the client and their own Solicitor, or meetings between the two Solicitors, or further four way meetings where everyone is present. The important thing is that there are no substantial discussions on the merits of anybody\'s case or negotiations conducted by the Solicitors in the two way meetings - all that is done in the collaborative four way meetings. Mutual trust and respect and a commitment to be open and honest is therefore at the heart of the process.
If the process breaks down for some reason then all the discussions that have taken place as part of the Collaborative Process will be treated as confidential and cannot be referred to in any court process, or indeed in any other negotiations. This is a fundamental principle. However, most cases are successful as the parties wish to resolve things, and usually find a way. The solicitors then prepare a binding Separation Agreement to reflect what has been agreed, which all parties sign. If a formal divorce or dissolution is needed from the court, the parties can then proceed with a simple uncontested action, which is a cheap and purely formal procedure.