Collaborative family law (also known as collaborative divorce) is a family dispute resolution process, in circumstances where both parties share a commitment to resolve their differences without going to court.
The Collaborative Family Law Process
1) The Collaborative Team is Formed
The collaborative dispute resolution process consists of a series of informal discussions and joint meetings with both parties and their representatives. During these meetings, a ‘collaborative team’ is created. This includes:
- You
- Your lawyer
- Your former partner
- Their lawyer
- Any other relevant professional advisors, such as communication experts and financial experts.
2) Each Team Expresses Their Priorities
During meetings, the focus is on the parties identifying what is important to them, rather than positional bargaining.
3) Usually, an Amicable Solution is Reached Quickly
As the process is collaborative, reaching an amicable resolution is likely to be far quicker than it would be with litigation.
Advantages & Disadvantages of Collaborative Law
As with all forms of conflict resolution, there are positives and negatives to undertaking a collaborative dispute resolution process. For this reason, you should consider the positives and negatives of collaborative law carefully before you decide whether it’s the right approach for you.
Advantages of Collaborative Law
• More likely to ensure that joint business interests are protected
• Sets the parties up for a positive start to their co-parenting relationship
• Is a private process that enables parties to deal with sensitive issues
• Parties can set their own timeframe within which to settle their dispute
• Helps ensure the division of matrimonial assets is best suited to the interests and needs of each party
• Will spare children (and the parties) from the stress litigation can cause
• Allows you to remain fully in control of the process and outcomes
• Allows you to pre-approve expenditure for all steps of the process and how professionals are to be paid
• Removes the threat of litigation, easing the stress of all parties.
Disadvantages of Collaborative Law
• It might not be suitable for people with matters involving a high level of conflict, mistrust or severe domestic violence issues
• You do not have access to Rules of Court to ensure or compliance with processes
• If the process breaks down, you’ll need to find new lawyers
• Collaborative practitioners are not presently authorised to issue a certificate under section 60I(8) of the Family Law Act 1975, stating that the parties have attempted to settle their dispute (a prerequisite to initiating court action)
Collaborative Law vs Mediation
Although collaborative law (or collaborative divorce) and mediation are both co-operative methods, there are differences between the two practices.
During mediation, the mediator acts as a neutral third party. However, collaborative law combines mediation with negotiation, by each party having their own lawyer to help their client to get their favoured outcome (even in a non-combative setting).
While mediation can often be a cheaper process, the collaborative law process involves more people, and offers a more bespoke solution.
Wendy Miller Special Counsel
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