Collaborative family law (also known as collaborative divorce) is a popular family dispute resolution process in instances where both parties share a commitment to resolve their differences without going to court.
The collaborative family law process is an interests-based style of negotiation, that focuses on the future and aims to solve all problems amicably, rather than dwelling on the past. For this reason, collaborative family law is popular with couples who still have a good working relationship.
What is Collaborative Family Law?
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:
- Your lawyer
- Your former partner
- Their lawyer
- Any other relevant professional advisors, such as communication experts and financial experts.
Collaborative family law meetings are generally non-combative. This is because the ‘collaborative team’ is committed to resolving all issues without going to court.
In fact, before the collaborative process begins, the parties and their lawyers are required to sign a contract to the effect that if their dispute is not resolved and one of them chooses to take the matter to court, then each party must retain new lawyers.
Due to this, the ‘collaborative team’ acts as a problem-solving team. Parties and their advisors are expected to show respect, compassion and understanding in order to work collaboratively.
During meetings, the focus is on the parties identifying what is important to them, rather than positional bargaining.
As the process is collaborative, reaching an amicable resolution is likely to be far quicker than it would be with litigation.
Similarly, the process may also be more cost effective because the parties direct the process and the progress of their matter.
Generally speaking, collaborative family law offers great value for money for participants. This is because the parties receive a high level of support which, in turn, often results in a better-quality outcome for both parties. The process can also continue for as long as necessary for both parties to have the outcome they want. However, the longer the process, the more expensive it will be.
Advantages and 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.
Generally speaking, the advantages of collaborative law are that the process:
- Is more likely to ensure that joint business interests are protected;
- Is more likely to result in an outcome that 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 rather than airing them in an open court;
- Parties can set their own timeframe within which to settle their dispute;
- Provides the best opportunity to determine a division of matrimonial assets that is best suited to the interests and needs of each party (and the children where necessary);
- Will spare children (and the parties) from the emotional damage that litigation can cause;
- Allows you to remain fully in control of the process and the outcomes;
- Allows you to pre-approve expenditure for all steps of the process, and agree on how the professionals are to be paid;
- Removes the threat of litigation, which means many people find collaborative law is far less stressful than other dispute resolution processes.
However, there are also disadvantages to collaborative law:
- It is not usually suitable for people with extreme personality disorders, mental health problems, ongoing addictive behaviours or severe domestic violence issues;
- You do not have access to Rules of Court to ensure access to information and documents (known as “disclosure”), 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 (which is a prerequisite to initiating court action);
- The room does not contain an authoritative decision maker, so negotiations can stall;
- You need to persuade the other party to participate, and this can be difficult as the process is relatively new.
Similarly, the collaborative process will not suit those people who:
- Are angry and want to seek revenge against their former partner or spouse or have an intractable dispute;
- Believe this process will enable them to pressure their former spouse or partner to agree to what they want;
- Wish to avoid giving certain financial information to their former spouse or partner;
- Are looking for a ‘soft’ option.
Collaborative Law vs. Mediation: Which is Right for Me?
Although collaborative law (or collaborative divorce) and mediation are both co-operative methods, there are differences between the two practices.
For example, during mediation, the mediator acts as a neutral third party. However, collaborative law is slightly different because it combines mediation with negotiation. Each party has their own lawyer who will argue for their client to get their favoured outcome (even in a non-combative setting).
Similarly, in mediation, a neutral mediator will empower both clients to make their own decisions, while lawyers in a collaborative law setting will provide their party with advice.
On top of this, the mediation process is often quicker and cheaper than the collaborative law process. This is because the collaborative law process involves more people and is a bespoke solution.
Contact us to Learn More about Collaborative Law
At Damien Greer Lawyers, we’re experts in collaborative law and we have two trained collaborative lawyers: Wendy Miller and Caitlin Wilson.
Both have been trained in non-confrontational negotiation and interest-based negotiation, so they can help to keep discussions productive at all times.
If you’d like to know more about the advantages and disadvantages of collaborative law, or would like to discuss collaborative law vs mediation for your matter, then please call us on (07) 3837 5500 or get started online today.