What is Collaborative Law?
Collaborative law is a family law alternative to dealing with matters through the Court system. Under collaborative law, the legal representatives of both parties aim to resolve the family law matter collaboratively without involving the Court.
Matters that can be dealt with under collaborative law include:
- Children; and
- Property and Financial Settlement.
Suitability of Collaborative Law
For the collaborative law process to efficiently and effectively work, both parties must share the same intention of resolving the matter as maturely and willingly as possible. Accordingly, this will be reflected in the legal representatives’ collaboration in the matter.
Collaborative law will be suitable for parties who:
- Have a mature and amicable perspective towards resolving the dispute;
- Wish to put the child’s best interests at the forefront;
- Wish to have the matter resolved as efficiently and effectively as possible;
- Want to have a key role in the discussion process;
- Require or wish to have advice from legal representatives in the discussion process; and
- Wish to keep the matter private.
Collaborative law will not be suitable for parties who:
- Do not have a mature perspective towards resolving the dispute;
- Have bitter feelings towards the other parties; and
- Are trying to escape providing full and frank financial disclosure.
The Process of Collaborative Law
Assessment of suitability
To determine whether both parties are suitable for collaborative law, the parties are required to undertake assessments in an initial meeting with the trained collaborative law lawyer.
If both parties have been deemed suitable to participate in collaborative law, both parties are then required to sign a ‘Participation Agreement’.
The Participation Agreement sets out the rules and guidelines, including both parties (and their legal representatives) promising not to litigate, threaten or encourage litigation. This is an important and distinguishing factor of collaborative law – by signing an Agreement to not proceed to Court, all parties are encouraged to resolve the dispute as amicably as possible, even in circumstances where the case may become difficult for all parties.
If the Participation Agreement is breached by either party commencing proceedings in Court, the legal representative is disqualified from being able to act for their client. The collaborative law process terminates once the Participation Agreement is breached.
The majority of the collaborative law process is conducted in “4-way” face-to-face meetings between both parties and their legal representatives who are trained in collaborative law.
During these meetings, both parties are given main control of the discussion process. By having trained collaborative law legal representatives present, the discussion is kept on track, efficient and collaborative.
Where it may be required, particularly in complicated financial arrangements, other expert advisors may be recommended to attend meetings. These include professionals such as accountants or child counsellors.
Once both parties have reached an agreement that they are both satisfied with, the legal representatives will prepare a Settlement Agreement which records the agreement that the parties have reached.
To make the Agreement legally enforceable, the Settlement Agreement is sent to the Court to be prepared as Consent Orders.