Collaborative Law is a type of Alternative Dispute Resolution process which involves two people and their lawyers working together (or collaborating) to reach an agreement in good faith and with full disclosure and cooperation. The aim is to facilitate an agreement that both parties are comfortable with and that balances their competing goals, interests, hopes and concerns.
The key difference is that everyone (including the lawyers) sign a contract agreeing not to go to Court or use threats of Court. Everyone agrees to work together as a team to find a solution. Instead of the lawyers providing advice to their clients behind closed doors and taking a positional bargaining approach, both lawyers provide advice in front of each other as part of round table meetings. The lawyers adopt interest based negotiation techniques, which are very different from the traditional adversarial role lawyers use in Court or traditional negotiations.
If you are considering this process, you should be ready to approach the negotiations with your former partner with an open mind. Collaborative Law works best where both parties agree to work as a team to understand each other’s perspective, try and find and focus on common interests rather than focusing on each party’s own self-interest, explore the full range of available options by thinking outside the box, and ultimately, reaching solutions that are acceptable to both of you.
Collaborative Law suits parties who are able to communicate with each other respectfully and are able to listen to the other’s perspective and concerns. Ultimately, both parties approaching the negotiations with the perspective that the future is a more important focus than the past will generally lead to effective negotiations and most importantly, avoid Court.
Why is Collaborative Law a good option?
By engaging in the Collaborative Law process, you are able to save a great deal of time and money, by avoiding the litigation process, and reaching an agreement that meets both of your needs.
Collaborative law is also a great way for parties who are relatively amicable to remain that way. This is particularly important when children are involved. The relationship between the parents may have broken down, but Collaborative Law helps preserve the co-parenting relationship going forward for the benefit of your children.
The parties and their lawyers work together as a settlement team to come to practical solutions rather than the parties working against each other on opposing sides as they do in litigation and, to an extent, in traditional negotiations. It also allows the parties to come to an agreement that is based on their mutual interests rather than simply following the letter of the law as a Court or mediator may do.
At the beginning of the Collaborative Law process, both parties and their lawyers sign a contract agreeing that the Court process is off the table so that the parties have the opportunity to work towards an acceptable settlement for both of them. As a result, the process is more productive than other forms of alternative dispute resolution given that the parties can proceed without the threat of litigation hanging over the discussions. The lawyers have an interest in helping the parties to come to an appropriate arrangement because they voluntarily agree that they will not participate in any litigation that may arise if the process fails.
How does Collaborative Law work?
The Collaborative process involves the two parties and their lawyers having a four-way meetings based on the goal of reaching agreement. The process generally proceeds as follows:
- The parties and their lawyers engage in a discussion about the parties’ common important interests which will form the basis for the subsequent negotiations;
- The parties and their lawyers will identify the questions that need to be answered by both parties;
- Both parties will work together to gather the relevant information based on the common interests;
- From the information that has been gathered, the parties and their lawyers will create the maximum number of options available to both parties;
- The parties will work together to evaluate the available options and shortlist the best ones, including receiving legal advice from the lawyers as part of the four-way meetings;
- The parties then negotiate on the finer details of the best option to come to an acceptable agreement and how best to formalise that agreement;
- The parties have closure on their Family Law matter and are able to move forward with confidence.
In some matters, in addition to legal advisors, the parties might agree to seek the assistance of an accountant or financial expert and/or involved a parenting expert for guidance in relation to the best options for the family.