Tash Nolan is a trained collaborative family lawyer.
What is collaborative family law?
Collaborative family law is a client-centred approach to resolving the issues that arise following a relationship breakdown. In a collaborative process, the clients and their respective lawyers agree to work together to find a fair solution to the issue, whether it be financial or parenting related, that needs to be addressed, without resorting to court.
Both parties and their lawyers will sign a Participation Agreement setting out the ground rules for the collaborative process and stipulating that if either party commences court proceedings, both collaborative lawyers will be disqualified from representing either party. This is a distinctive feature in that the lawyers also have an interest in resolving the dispute.
The collaborative approach allows for cooperation between a range of professionals including child psychologists and counsellors, accountants and financial planners who work together with the parties and their lawyers in assisting families through the separation.
The negotiations take place in a series of ‘4 way’ or ‘5 way’ meetings between both parties, their lawyers and, if necessary a coach/facilitator. Correspondence between the parties is kept to a minimum. By attending the meetings the scope for any misunderstandings is reduced and the parties retain control of their matter.
Minutes of each meeting are recorded and action items for future meetings are agreed. Once a settlement is reached, the lawyers will draw up the appropriate documentation to be submitted to the Court and made into Consent Orders.
Underpinning the collaborative process is an understanding that the parties (and their respective lawyers), will act in good faith, be open and honest with their dealings with one another and respect that each party will have different views that need to be canvassed to achieve a fair and equitable settlement.
How can other professionals assist?
A coach/facilitator is recommended to assist and manage parties’ communications and understanding of the other party’s perspective.
In matters involving children, professionals such as counsellors and family therapists can offer expert advice and assistance.
In disputes involving financial issues, financial planners, valuers and accountants may be engaged to provide information or advice to the parties. Often, parties disagree on the value of an asset. Once that asset has been properly valued, the scope of the dispute is narrowed, making it easier for the parties to try and resolve the matter.
The collaborative process is flexible and whether or not professionals are engaged, and the scope of their involvement is decided and agreed between the parties.
Is my case suitable for the collaborative process?
Collaborative law is not for everyone. It will be of interest if the following are important to you:
- you want a dignified, non-aggressive resolution of the issues
- you and your partner have children and wish to reach a resolution by agreement with their needs and interests at the forefront
- you do not wish to incur the costs and animosity generated by court litigation
- you value retaining control over decisions about restructuring your financial arrangements or arrangements in relation to the children, but with advice from experts
- you do not wish to hand over such decision making either to your lawyer or to a judge
- you want your dispute and the terms of any subsequent settlement agreement to be confidential
- you need the assistance of a lawyer to help you negotiate in face to face meetings
- if you are parents, you need to maintain a respectful co-parenting relationship
Collaborative law will not be the right option for you if:
- your main objective is to “seek revenge” or to “have your day in court”;
- you are looking for a “soft option”;
- you think that the process will allow you to “out-manoeuvre” the other party;
- you are hoping to get away with giving less than a full and frank financial disclosure
- In cases where there is a history of domestic violence or other abuse, the collaborative family law specialists will need to consider very carefully whether the case is suitable for the collaborative process and are likely to insist on the involvement of other professionals in the process to ensure that the interests of you, your partner and any dependant children are adequately protected and represented.
Why can’t we go to work if the process doesn’t work?
The reasons that collaborative law has been so successful is that the lawyers are disqualified from acting for their client if the process fails. The Participation Agreement outlines the fact that all the parties are attempting to achieve settlement without threatening or being subject to the threat of court proceedings when things become difficult.
By agreeing at the outset not to go to court, the parties and their lawyers can be encouraged to reach creative settlements while having their family’s interests at the forefront of any settlement proposal.