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Collaborative Law

03rd June 2015

When relationships break down, a diversity of problems arise, ranging from finances to arrangements for the children, even who should retain the dog.

Rightly, many people are wary of using solicitors. Sometimes, lawyers can serve to polarise and inflame an already difficult situation. Lawyers in this country are part of what can be described as an adversarial system.

The English system features claimants, defendants, petitioners and respondents. All these terms reflect the separateness of the interests and status within legal proceedings. I still see correspondence which refers to one party as “my opponent”.

Whereas in some areas of law this may well reflect the reality of the situation: that there is in fact little in common between the parties apart from one particular set of circumstances. In family law it is rarely so straight forward.

Often, and always if there are children involved, people need to maintain some level of working relationship post-separation. This means that the traditional adversarial approach is not always appropriate and indeed can be highly counterproductive.

The shortcomings of this approach have been perceived for many years and there are other ways – more constructive alternatives to litigation – that can assist people in resolving their issues in a more amicable way when relationships breakdown.

Mediation is well-known, collaborative law less so. A number of lawyers across the country are now trained in this process, which has been up and running for several years.

There is an active group of solicitors trained in collaborative law working in Chichester of which I am a member. The core of the collaborative approach is an avoidance of entrenched positions, drawn out correspondence and a commitment to minimise legal proceedings.

Unlike mediation, collaborative law involves the presence of both parties and their respective solicitors at a series of round table meetings. Usually these take place at one or both firms’ offices. The meetings are entirely confidential (in jargon “without prejudice”), which means that what is said in these meetings cannot be referred to in any legal proceedings if the process doesn’t work. In fact, the parties and their lawyers sign an agreement the effect of which is that, should the process fail, the lawyers must withdraw and cannot act on behalf of either client in any related legal proceedings. This means there is a commitment on the part of the lawyers as well as the parties to ensure the process is successful.

Collaborative law is a quicker and cheaper option than going to court but still offers the benefit of support and advice from your legal team.

Collaborative law has the advantage of being flexible and quick, and avoids the pitfalls involved in even the most refined of written communications. It can be tailored to your needs in terms of location and timing rather than requiring adherence to the deadlines set by the courts and the inevitable delays involved with litigation. More importantly however, the nature of the process focuses on solutions rather than “positions” and looks at resolution in a way that is mutually acceptable. This is not always an inexpensive option, but it has the added value of preserving relationships rather than entrenching resentment which can sometimes set the pattern for the future and make parenting after parting that much harder.

Also, collaborative law allows a solution that deals with all of the issues at the same time, whereas litigation and correspondence between solicitors frequently adopts an approach which separates issues as though in some sense they were disconnected.

Generally, a successful collaborative law approach will require three meetings. Other professionals can be brought in to the process when necessary and there is an increasing emphasis on introducing collaborative law training for financial  and other professionals.

From experience I know that collaborative law is not a soft or easy option, but one that can be very successful in the right case. In particularly suits people who are willing to be flexible and solution-orientated rather than those who are looking to use the process to score points against the other.

Like most issues in family law, there is no one-size-fits-all approach in divorce. If you would like to know more about collaborative law please contact Jim Richards at George Ide LLP.

 

Jim Richards, financial disputes, children cases and co-habitation.

George Ide
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