Collaborative Divorce: The Process Of Collaborative Family Law

At GoodLaw, we believe in alternative dispute resolution. The standard way that family lawyers resolve disputes is through the court system. However, experience tells us that there are often better ways of resolving family law disputes. These alternative processes include mediation, arbitration, mediation/arbitration and collaborative divorce, also called collaborative family law.

Collaborative family law is a process in which the focus moves away from winning and towards fairness and the best interest of the family. Instead of trying to get more than the other spouse, in a collaborative divorce process the focus shifts to satisfying the underlying needs, fears and hopes of each spouse.

How does Collaborative Law Work in the UK?

What Is Collaborative Divorce?

Collaborative divorce or collaborative family law is a voluntary and private dispute resolution process in which the separating couple makes a commitment to settle their family law matter outside of court by working cooperatively. Collaborative Family Law approaches divorce holistically by addressing the financial, emotional, and legal issues that impact a family. Each person must focus on what is fair and in the best interests of the family, rather than on winning.

In collaborative divorce, the separating couple agrees to:

  • communicate in a respectful and open manner;
  • exchange information in good faith and to provide complete and accurate disclosure;
  • maintain the confidentiality of the process;
  • resolve issues constructively and in a non-adversarial manner;
  • engage in non-positional negotiation, focusing on both parties’ interests.
  • find mutually acceptable solutions that work for the family as a whole; and
  • not litigate in court.

Collaborative family law is a team-based and versatile approach. The divorcing couple and their family lawyers work together in negotiation meetings called four-way meetings. Unlike the traditional court-based approach to divorce, in collaborative divorce the divorce lawyers and separating couple work together with the objective of reaching a fair and durable settlement.

While the collaborative family law process always includes collaborative lawyers, it often includes other professionals as part of the team. This can include financial specialists (accountants), mental health professionals (also known as “divorce coaches”), child specialists, and others.

Participation Agreement

The defining element of the collaborative process is the Participation Agreement. After each person retains a certified collaborative lawyer, they sign a Participation Agreement to enter the process.

This agreement contains a “disqualification clause” that says that if either party commences litigation in court, the collaborative process will end and the family lawyers can no longer represent their clients. This means that both separating spouses must hire new lawyers and it acts as a deterrent to quitting the collaborative divorce process.

The collaborative process focuses on supporting you and your family to reach an agreement to successfully move forward in two new households. 

How To Start The Collaborative Divorce Process?

Below we will outline the four-step process for a collaborative divorce. This includes:

  1. Retaining Collaborative Lawyers
  2. Signing the Participation Agreement
  3. Collaborative 4-way Meetings
  4. Separation Agreement

STEP 1: Retaining Collaborative Lawyers

To start the process, each party needs to retain a collaborative divorce lawyer. These family lawyers have completed special training in collaborative law, mediation, and interest-based negotiation.

STEP 2: Signing the Participation Agreement

At the first four-way meeting, the parties sign a participation agreement with their family lawyers to enter the collaborative divorce process. If the parties have retained divorce coaches or other professionals, they may also sign the agreement.

STEP 3: Collaborative 4-way Meetings

The collaborative family law process consists of a series of four-way meetings. While a traditional four-way meeting in family law involves a settlement meeting between the former spouses and their lawyers, a collaborative family law meeting is different.

First, the collaborative family law meeting may include other specialists from the collaborative team, such as a financial neutral or divorce coaches.

The nature of a collaborative family law meeting is also different. Traditionally, lawyers engage in position-oriented negotiation when meeting. However, in collaborative family law, the parties and their lawyers work as a team during these meetings and negotiations are interest-based.

Interest-based negotiations are focused on the families underlying:

  • needs
  • wants
  • goals
  • concerns

While there are no rules about the number of meetings, the process typically involves around two to four meetings. The first meeting consists of introductions, reviewing and signing the Participation Agreement, explaining the collaborative process, discussing expectations and ground rules, and setting an agenda that identifies the issues at hand.

Between the meetings, the parties engage in information gathering by exchanging document requests between their family lawyers and consulting with other professionals as needed. The collaborative divorce experts may assist in preparing reports, such as a business valuation. If divorce coaches have been retained, the separating spouses may meet them individually for emotional support, or together to develop a parenting plan, to resolve parenting conflicts, or assist with communication strategies.

During subsequent meetings, the separating couple will continue to explore interests, generate options and negotiate mutually acceptable resolutions. This continues until a separation agreement has been reached.

STEP 4: Separation Agreement

Once the parties have reached an agreement on all issues, the family lawyers will prepare a separation agreement, which will set out the agreement on all issues. The separation agreement is a legally binding contract that is enforceable by a judge. The separation agreement can include terms on parenting, child support, spousal support and the division of family assets and debts.

Is Collaborative Divorce A Good Idea?

Overall, yes, collaborative divorce is a good idea. The collaborative family law process offers a healthy approach to separation and divorce. It strives to avoid the negative emotional and financial consequences of family law litigation and its impact on the family, by offering the following benefits:

Client-centred

Collaborative family law is a client-centred approach, as the parties are very active in making decisions about what their future is going to look like. The focus is on interests rather than positions, and the collaborative team works together to find solutions that meet the needs and goals of both parties. The results are often more satisfactory as they reflect what is important to both parties. This means that the results of negotiation are also challenged less frequently.

Client-driven

In collaborative family law, the parties have significant control over both the process and the outcome. This is especially true when compared to litigation where the process is rigid, there are often significant delays and the final decision is made by a judge. In a collaborative divorce or separation, the clients are very involved in making decisions about the timing, speed, and nature of the process, as well as reaching a deal that works for them.

Supportive

The separating or divorcing couple is supported by a professional team who can help them navigate through legal, financial, emotional and parenting issues. The collaborative divorce process also offers each spouse the opportunity to be emotionally supported by a Divorce Coach. Divorce coaches are mental health professional who are trained to assist families with managing the stress, conflict and transitions that come with divorce. Each spouse can also be supported by a neutral Financial Specialist to help prepare a business valuation, provide advice on pensions, help with financial planning, and to assist with tax planning.

Open and Transparent

In the collaborative divorce process, the separating couple commits to engaging in honest and respectful communication, to providing full and frank disclosure of financial and other relevant information, and to negotiate in good faith. This allows the separating or divorcing couple, and their family lawyers, to work together in a team and collaborate in a more open and trusting manner.

Cost-effective

The collaborative divorce process is in most cases significantly less expensive than family law litigation. This is because information is exchanged more seamlessly as the parties have committed to providing full and frank disclosure. While adding professionals to the team might seem like an additional expense, these professionals make the process more streamlined. For example, joint financial specialists can provide valuations of assets and incomes rather than the divorce lawyers fighting over these issues in court.

Child-centred

Collaborative Family Law is a child-centred process. It fosters open and respectful communication. In the collaborative process, the spouses can be supported by a neutral psychologist divorce coach, or individual divorce coaches, who help to improve communication, assist in developing parenting plans, and foster effective co-parenting. A child specialist can also be retained to give children a voice in the process and help develop strategies that meet their needs.

Family law litigation often escalates conflict, fosters animosity, and has a devastating impact on children. Research tells us that it is the level of parental conflict, as opposed to the divorce itself, which causes significant negative consequences for children. High conflict can cause negative psychological, social and academic difficulties for children, and even impact brain development.

Holistic and Creative

Collaborative divorce tackles divorce holistically by recognising that divorce is not just a legal process, as it also involves significant financial, social and emotional transitions for the spouses and any children. Unlike family court, the collaborative divorce process fosters holistic, creative, and customized solutions. These solutions are not confined to legal issues and often reflect non-legal considerations such as emotional, financial, and child-related matters. The process encourages the collaborative team to develop creative arrangements, tailored to suit the unique needs of the family.

Confidential and Private

Collaborative family law is a private and confidential process. The information and documents exchanged in the process are protected by the confidentiality terms of a participation agreement and cannot be used in divorce Court (with limited exceptions). In contrast, most information disclosed during family law litigation can be used in Court and is public.

Who Can Use Collaborative Divorce?

There is a common misconception that the collaborative divorce process requires a divorcing couple to be friendly and in agreement on most of the issues in question. The reality is that the collaborative process is an excellent option for resolving family law issues, even in cases where there is considerable disagreement and conflict.

Another myth is that the spouses must be “collaborative” to have a collaborative divorce. The reality is that collaborative divorce can accommodate many types of personalities and relationships. The collaborative process can even be successfully employed in high-conflict cases. Collaborative divorce merely requires that the couple is willing to engage in good faith negotiations and will not go to court.

However, while collaborative family law has tremendous benefits, it is not right for everyone. Collaborative Family Law may not be right for you if:

  • There is a history of family violence;
  • There is a significant power imbalance between you and your spouse;
  • You believe that you cannot negotiate safely or fairly with your spouse even with professionals present;
  • You require urgent relief such as an emergency protection order, restraining order, exclusive possession of the family home, or a non-removal order preventing your spouse from leaving the province with your children.
  • You are concerned that your spouse might be hiding or dissipating assets, or that there is a history of hiding financial information.
  • You expect your lawyer to advocate for you in an aggressive manner and take an adversarial approach; and/or
  • Your spouse does not agree to engage in the collaborative divorce process or you have serious concerns that your spouse might terminate the process and start a court action.

How Do I Get My Partner To Use Collaborative Divorce?

We recognise that it is often difficult and not always possible to have a candid discussion with your spouse about how you envision your separation and divorce. How do you get them to buy into the collaborative family law process? In our experience, what works is having one of the spouses attend a meeting with a family lawyer to go over the collaborative process as well as family law in general. With this information, the spouses can start to have an informed conversation about the next steps.

The first meeting with a family lawyer is often free as many firms offer an initial free consultation. However, if costs are an issue, sometimes one spouse can pay for the initial consultation of the other spouse. Spouses can also agree that their legal fees in the collaborative family law process will be paid from the family assets and savings.

We will often suggest a list of potential collaborative family lawyers for the other spouse to contact and we will provide helpful links so that they can start researching collaborative divorce on their own.

In some cases, mediation, mediation/arbitration, or arbitration may be a more suitable alternative dispute resolution process. However, in other cases, hiring a family lawyer to go to court may be the best option. If you are unsure whether the collaborative divorce process is right for you, contact our collaborative family lawyers for your free 30-minute collaborative family law consultation

Contact the GoodLaw Solicitors family law team at [email protected] or call 01273 956 270.

By Published On: April 20th, 2023Categories: Insights

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