What is Collaborative Law?
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19-04-2021

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 gaining a lot of traction in the area of Family Law and in particular in helping people negotiate and settle divorce or separation terms in a timely manner.

There 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.

Most of us know someone who has been through a tough divorce, balancing home life and career while waiting for a Family Law verdict in Australia’s Federal Circuit and Family Courts.

As a result of the sometimes lengthy and complicated court battles, the consequences are often catastrophic 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 stress-free settlement.

Collaborative Law has some similarities to mediation in that it relies on good conscience, full disclosure, and reaching mutually agreeable resolutions. The key distinction is that in Collaborative Law, each practitioner has their own Lawyer.  The parties are on an equal footing.

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, obligations, 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 partner’ Lawyers must withdraw from the case if the parties are unable to find an understanding and court is the only option.

In such cases, the Lawyers are unable to represent either side in disputed lawsuits. This means that when a group employs a collaborative counsel, they are fully committed to resolving the dispute in a cooperative manner.  This is a big disincentive to litigation. Those Lawyers should receive specialised training in the collaborative process to ensure that they have the expertise required to effectively engage with both stakeholders.

The following is a typical Collaborative Law process:

  1. Each group is represented by a collaborative lawyer who has been educated in the process.
  2. The contract is signed.
  3. The groundwork for effective cooperation and problem-solving between parties and their counsellors is laid.
  4. Lawyers will collaborate with their clients to get a better understanding of their situation, desires, and desired outcomes.
  5. On request, all information is exchanged openly and honestly, maintaining an atmosphere of integrity, openness, and cooperation.
  6. Negotiations are conducted in a succession of face-to-face sessions attended by both attorneys and clients.
  7. The solicitors debrief with their clients after each meeting to review the activities of the meeting and the progress that has been achieved.
  8. The number of meetings and time it takes to resolve a problem varies based on the magnitude of the problem and the progress achieved at each meeting. Negotiations will take anywhere from one to eighteen months on average.
  9. The lawyers will often engage joint experts who work with both parties to achieve an outcome to the benefit of both. These experts can include financial advisors, counsellors (including child experts) and accountants. A proper agreement provides for the future of all and these experts can be invaluable to the process.
  10. When a settlement is signed, the lawyers will usually draft a Settlement Agreement, which will be turned into a joint consent order application and submitted to the Court for approval, or they will draft a Binding Financial Agreement, which will be translated into a joint consent order application and sent to the Court for approval.

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.

Some other questions to consider include, are you and your partner willing to:

  1. Spare yourselves and your kids the stresses and hardship – both emotional and financial – that comes with litigation.
  2. Be frank and give full disclosure on financial issues.

The ability of both parties to agree is critical to reaching an amicable settlement by Collaborative Law otherwise conventional divorce 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.

Contact us today to learn more.

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