Collaborative Law

When a relationship breaks down, there are three main areas which may need addressing: sorting out the financial consequences, reaching agreement over issues concerning any children and, if you are married or in a civil partnership, formally dissolving that marriage or civil partnership.

The options

Broadly speaking, there are 4 ways of trying to reach agreement over any or all of these issues:

  1. Between yourselves, without lawyers - sometimes referred to as a "kitchen table" agreement;
  2. Through the "traditional" method - each of you instructing your own solicitor who acts in the best interest of their own client. You try to negotiate an outcome against the backdrop (or threat) of going to court. If the negotiations break down then matters are determined by the court. This approach often leads to outcomes which are unsatisfactory to at least one, if not both, of you. It is usually the most expensive way of resolving matters.
  3. Mediation - a series of face-to-face sessions with a neutral third party who acts as a facilitator to help the two of you reach your own outcome. The mediator cannot give legal advice, and any agreement reached is not legally binding. To make the agreement binding you instruct lawyers to have the terms made into a formal court order; or
  4. Resolving matters through collaborative family law.

What is collaborative family law?

Collaborative family law is a relatively new process which originated in North America and is becoming more and more popular here. It is sometimes described as a hybrid between the "traditional" approach outlined above and mediation. As with mediation, matters are dealt with in series of face-to-face meetings with lawyers and third party neutrals where appropriate (such as Independent Financial Advisers, accountants etc) who aim to help you reach a satisfactory outcome. Unlike with mediation, in the collaborative process the trained professionals can give you legal advice.

The idea is that the parties and their specially trained legal advisers sign a standard 'participation agreement' committing to the collaborative process. The fundamental principles behind this agreement are:

  1. everyone (including the collaborative lawyers) contracts out of going to court to resolve matters; and
  2. although each solicitor has an obligation to act in the best interest of their client (as is always the case), you and your former partner are effectively agreeing that, in order to fulfil their obligation to act in your 'best interest', the solicitors should act in the best interest of the family as a whole. Each lawyer therefore works in tandem with their opposite number, known as their "collaborative colleague".
  3. The couple are encouraged to sign a joint "Anchor Statement" at the outset - a statement setting out mutual aims and goals. This statement acts as a positive focus for the couple when potentially sensitive and difficult issues arise.

It is not possible to restrict a person's legal right to take matters to court so the way this process works is that, under the signed participation agreement, everyone (including the lawyers) agrees that the lawyers engaged in the collaborative process cannot then act in any formal proceedings issued by either party at court. In other words, although a party can turn to the court if they feel it is necessary, they (and the other party) would then have to instruct new solicitors - the associated expense of 'starting again' with a new legal team effectively acts as the 'glue' keeping everyone at the negotiating table until a settlement has been reached.

The benefits of the collaborative model

The benefits of the collaborative process include:

  1. Everything is dealt with in face-to-face meetings, which means:
    1. There is no aggressive correspondence passing between the solicitors
    2. There is reduced scope for things to be misunderstood or misinterpreted - which can happen when matters are dealt with in solicitors' correspondence
    3. You dictate the pace
    4. You maintain control of the process - not the lawyers or the court
  2. As everyone has agreed to stay out of the court process, everyone is less concerned with 'what the court would do'. This frees everyone up to be more creative and to negotiate a mutually acceptable outcome which is right for your family - you may want to give greater weight or emphasis to something which the court would not ordinarily consider very relevant.
  3. As you are dictating the agenda and what is important to you, rather than conforming to the court's agenda and pace, it enables you come out of the whole process with more dignity.
  4. By 'collaborating' with your former partner and dealing with matters in a non-adversarial way, there is a greater chance that you and your former partner will be able to move forward with a better working relationship than if you dealt with matters through the courts. This is particularly valuable if you have children, as you will no doubt want to be able to have a working relationship with your former partner so that you can continue to co-parent your children.

Is the collaborative model right for everyone?

The Collaborative model can be used for all types of situation - from the most straightforward of circumstances, to the highly complex. However, it may not suit everyone. It is unlikely to be right for you if:

  1. You feel that your former partner will not give truthful information about their finances, meaning you envisage needing the court to force them to give proper and accurate disclosure of their affairs; or
  2. you would not be comfortable sitting round a table with your former partner and discussing matters; or
  3. you want your solicitor to achieve the best possible result for you - i.e. with little regard as to how that outcome may impact on your former partner, or potentially the children; or
  4. injunctions (emergency applications to preserve assets or secure personal safety) are envisaged or anticipated; or
  5. you want to issue divorce or civil partnership dissolution proceedings urgently to secure the jurisdiction to England and Wales (however, even in this case, once the issue of jurisdiction has been overcome, it might still be possible to enter into the collaborative process to resolve the wider issues - although you would need to change legal representation).

There could be other reasons why you may be better off dealing with matters in a way other than collaboratively but your collaborative lawyer can discuss this with you.

How does it work?

The process works through a series of meetings attended by the four participants - you, your former partner and the two collaborative solicitors.

At the first meeting everyone will discuss the process and objectives and, if they agree to proceed collaboratively, they will sign the participation agreement confirming that they are committed to resolving all issues without litigating through the courts. The 'Anchor Statement' may also be agreed and signed.

There will then be a series of 'round table' meetings. Early meetings will focus on gathering and exchanging each party's financial disclosure. Once everyone is satisfied that all the information is in, matters will move on to discussing and trying to negotiate a mutually acceptable solution which works for the whole family. If it is felt to be advantageous, other suitably trained professionals can be joined to the process and attend the meetings - for example, financial advisers, accountants, barristers or counsellors / therapists.

Once an agreement has been reached, the lawyers will prepare the necessary paperwork to have the agreement made binding. This paperwork will then be submitted to the court for a judge to consider and, hopefully, approve.

How much does it cost?

The costs are calculated on a 'time-spent' basis - according to the individual solicitors' hourly rates. Couples deal with costs in different ways - sometimes each party pays their own solicitor's fees. On other occasions, if one party has significantly more resources than the other, they may agree to pay both parties' solicitors' charges. On yet other occasions, the parties may agree to divide the combined total costs.

Which lawyers work in this way?

In order to be able to practice collaborative family law, the lawyers need to undergo specialist training. More and more family lawyers are undergoing this training as they recognise the real benefits it can bring to separating couples. All of the members of The London Collaborative Group have undergone the necessary training - see the find a member page for details. The members of The London Collaborative Group are by no means the only collaborative practitioners in London and if your partner has already identified a collaborative practitioner who they want to instruct and who is not a member of The London Collaborative Group, that does not matter. However, the members of The London Collaborative Group meet up regularly and have a good working relationship with each other which can help with concluding matters.