Stop, Collaborate And Listen


While it's not a phrase most clients associate with divorce, collaborative law could be the answer in a post-LASPO landscape where court is to be avoided at all costs.

The Oxford English Dictionary defines 'collaborative' as: 'produced by or involving two or more parties working together'. It's not a phrase clients normally associate with divorce or separation, as their usual thoughts are often acrimonious and highly emotional.

Collaborative law, a non-conflictual dispute resolution mechanism for divorcing couples, has been around for about ten years. The uptake been low, perhaps no more than 10 per cent of family cases - although it may be more in London.

This could be for a number of reasons: lack of confidence in the process (client confidence in facing their spouse/partner and lawyer confidence in managing the process), little client awareness of collaborative law, lawyers' fear about loss of work if it breaks down, etc.

But a combination of factors could give the process new impetus. Legal aid cuts and the push of most family law cases out of scope will force many individuals to look at alternative solutions. And the financial pressure brought on by the recession will also encourage family lawyers to offer their services differently.

Unbundling, which breaks down the divorce process and where lawyers charge for some elements only, has generated a lot of interest recently. But collaborative law could also have a role to play in keeping costs down and clients away from court.

Whatever the reason for the breakdown, the unknown of formalising the separation can be far more daunting for clients than the breakdown itself.

Many clients are now open to alternatives. After all, at one point in their lives, these individuals had mutual respect for each other. They want to walk away at the end with that respect maintained, particularly if they still have to communicate about the children.

Collaborative law involves a series of round-table meetings, handing the control over to the clients to make the decisions, with the lawyers trained in collaborative law there as a support. It creates a safe, confidential and open discussion between everyone at the table.

Almost every issue is discussed at the meeting and should there be any discussions beyond the meetings, either between the lawyers, the clients or client and lawyer, then those are fed back to all so nothing is hidden.

Ultimately, the outcome is about the people/family involved and not the individual.

Family lawyers understand and promote the concept of dealing with matters as amicably as possible, so collaborative law seems like a good alternative to traditional practice. Some lawyers that are not trained in collaborative law still maintain this good practice but when acting in the best interests of the client, sometimes the phrases 'my client wants this' or 'my client thinks that' can appear. Collaborative law avoids that as the focus is on the couple or the family and their solutions collectively.

There are other advantages in terms of time and cost for the client. The clients have a hand in arranging the round-table meetings to suit their needs, and being out of the court arena means that no one external is setting the timetable.

Doing away with numerous letters back and forth limits the expense as all issues, even the everyday ones, can be discussed at the meetings. And, of course, the costs of going to court can be a very difficult subject to broach - even for the lawyers.

In keeping with being amicable, all involved agree that, should the process break down, the clients will have to use new lawyers, so everyone involved is incentivised to make the process work.

It does not necessarily have to relate to separation issues and can extend to pre-nuptial and cohabitation agreements.

It is not a process for all, and lawyers will need to 'screen' clients to assess suitability, as in the case of mediation. It does differ from mediation, of course, in that those meetings involve just the clients, usually one independent mediator and no lawyers.

That said, it is thought of as a fairer and more rounded process where both clients' interests are balanced as equally as possible to achieve an outcome workable for all involved.