These days most people have heard about the role of mediation in family law, but fewer have heard about the Collaborative Family Law process. Both Sandra Marshall and Madeleine Young at Hewetts are trained and experienced Collaborative Family Law practitioners, and are strong advocates of the process as a means of dealing with your separation with dignity and intelligence.
When a couple enter mediation, they aim to reach an agreement about matters concerning their financial arrangements, and arrangements for their children, with the help of an independent mediator. However, very frequently parties will want to have some legal advice about the arrangements they are proposing, particularly in relation to their financial matters. This can mean that the mediation process fractures, with each party taking legal advice separately which can undo the agreement they thought they had reached.
The advantage of the Collaborative Family Law process is that both parties have their lawyer with them in the room whilst they are negotiating. The process is led by the two parties and their two lawyers, as a team, in meetings known as “four way meetings”. Success is dependent on the parties being honest and open about their financial resources, and working together to find an acceptable solution to the issues they have. One critical factor of the Collaborative Family Law process is that the parties and lawyers sign up to a "Participation Agreement”, which is a contract setting out the rules for the process. In the Participation Agreement the parties contract with each other not to go to Court, unless they intend to put any agreement they have reached into a Court order (known as a "Consent Order"). Therefore, there is a very strong onus on everyone to make the process work. In the worst case, if the parties are unable to reach some common ground, they will have to instruct new lawyers if they wish to enter the Court process. This wastes time and money for the parties, and is therefore a strong incentive to try and reach an accord. Lawyers don't like failing, and that in itself is enough incentive for the lawyers to work hard to reach an acceptable settlement for both parties! There is no Judge in the process, but experienced Collaborative Family Law practitioners who work together regularly are skilled at seeking out compromises which work for the family as a whole.
Because of the nature of the process, Collaborative practitioners will be careful to ensure that the process is right for their client before recommending it. It is not a "light" option, and for some people facing their former partner in this way is just not possible.
Increasingly, couples are separating who have shared business interests, buy-to-let properties, or other shared assets which they may not want to dispose of, or which may result in significant tax considerations. The Collaborative process gives parties considerable control over the outcome, allowing them to become much more creative than a Judge would be likely to be, and the parties can conduct the process as quickly, or as slowly, as suits them. If appropriate it is quite possible to invite third party experts, such as accountants or family therapists, into the meeting to assist.
Where couples have children, dealing with matters this way can pave the way for more constructive relations in the future, and the majority of people who have separated using the Collaborative Family Law process will say that they appreciated how it helped minimise the upset and distress, not only to themselves, but to their families as a whole.
Published on 15/09/2017