Collaborative Family Law

What is Collaborative Family Law?

Collaborative law works on the principle of achieving a fast and fair divorce settlement for both parties while maintaining an amicable relationship between divorcing couples and their children.

In collaborative law, divorcing couples agree on a time frame to settle the divorce out of court and work with a team of professionals including lawyers, financial advisers and counsellors to reach an agreement that minimises disruption, distress and expense.

How does Collaborative Law work?

In the Collaborative Law process each client is represented by their own independent lawyer. Clients and their lawyers attend all meetings together and work together in the meeting room to reach settlements. The collaborative lawyers work to assist all the clients in the meeting room to participate fully and frankly in the collaborative negotiations and to resolve all matters in dispute.

By contrast, in the Mediation process, typically clients attend mediation sessions alone (and may or many not retain lawyers) and a neutral mediator assists them to resolve matters in dispute.

In general in Australia, mediation is mandatory for all separating parents, except where an exception under the Shared Parenting Act applies. Clients who have commenced litigation may also benefit from returning to mediation to resolve issues.

Participation Agreement

In a Collaborative Family Law matter the parties and their respective lawyers sign a participation agreement contracting to:

1. Seek a resolution of the parties' family law matters without the threat of litigation.
2. Protect the children from conflict.
3. Negotiate an agreement in which the best interest of the children is paramount.
4. Provide all of the information that is relevant to the negotiation of a settlement, whether it is specifically requested by the other party or not.
5. Seek to find a resolution that meets the needs of all of the members of the family.
6. Not take positions regarding parenting arrangements as a strategy in the negotiations.
7. Not make economic threats.
8. Jointly engage neutral experts.
9. Deal openly and honestly with each other.
10. Communicate in a respectful manner.
11. Maintain confidentiality of all communication within the collaborative law process.
12. Have the process terminated by the lawyers if either of the parties violates the terms or the spirit of the participation agreement.
13. The lawyers withdraw from acting for the parties if, despite the best efforts of the parties and the lawyers, the negotiations fail.

Collaborative 'Keystone'

A number of models of collaborative law, or collaborative practice as it is often referred to, have evolved since 1990 but the keystone of Collaborative Law remainsas follows:

• The collaborative lawyers must withdraw from acting for the parties if the interested based negotiations fail and the parties proceed to litigate.

Collaborative Law in Australia

Collaborative practice was recently introduced to Australia and is rapidly expanding. In less than two years it has been adopted in four States and the Australian Capital Territory. It is developing organically to meet the needs of each community that adopts the process. The common principles are however, that the participants must sign a participation agreement that provides that the lawyers must not continue to act for their respective clients in any future litigation of the dispute, and that the clients and the lawyers enter into interest based negotiation to resolve the dispute.

Although collaborative practitioners need training in mediation skills, collaborative practice has some very distinctive features that distinguish it from the broadest definition of mediation. It is fundamental to the collaborative process that the collaborative lawyers are not neutral or impartial third parties in the process. On the contrary, they are their client's allies. Their alliance with their client is however, very different from the usual lawyer/client relationship. The legal advice that collaborative lawyers give to their clients is acknowledged to be simply one facet of the dispute to be taken into account as the clients work toward a resolution that meets their needs.

Advantages of Collaborative Law

Some of the advantages of collaborative law include:

• All parties are represented by collaborative lawyers, and receive independent legal advice
• All parties have your lawyer present during collaborative negotiations/meetings
• All parties work towards settlement
• Collaborative lawyers help to explain issues and help you to achieve goals by mutual participation and agreement
• Collaborative meetings are confidential between you and your lawyers
• Collaborative outcomes can be creative and meet the unique needs of the parties
• Collaborative process can be more informative, engaging and less stressful than other methods of dispute resolution, especially court
• Timing of the meetings and length of the process can be controlled by clients
• Less letting writing and less telephone calls between lawyers
• Possibly less time and less money than commencing litigation and going to a trial in court
• Neither of you are permitted to play games or take advantage of the other
• Your collaborative lawyers share a financial incentive with you to make the collaborative process work. Collaborative lawyers only succeed if they achieve a win-win situation for you both and are “out of a job” if the process breaks down

Where can I find a collaborative law practitioner?

You can find a collaborative family law practitioner at The Family Law Directory.

Collaborative family law practitioners are listed under "Collaborative Law"

Disclaimer

The Family Law Blog provides general information only and is not provided as legal advice. If you have a legal issue, you should contact a lawyer before making a decision about what to do or applying to a Court.