Separating? Why choose collaborative practice?
Collaborative practice is a highly effective way of helping separating couples make their own decisions about their children and finances without resorting to litigation. Unlike court proceedings, collaboration encourages former partners to maintain a healthy post-separation relationship, and to agree on parent and child friendly outcomes which will be best for their family, as it guides them away from any focus on individual entitlements and blame.
What is collaboration?
Collaboration is a defined process where a separating couple is assisted and supported by an interdisciplinary professional team. Whilst each party is represented by a family lawyer, other professionals such as a financial planner, family consultant/psychologist and child expert are also involved from the get-go to help the couple with their financial, emotional and parenting issues. These other professionals are referred to as “neutrals”; not acting for either spouse but rather working alongside the lawyers to help support, assist and educate the parties throughout the process.
How can collaboration be used and why?
Collaborative practice can be used for any type of family Law matter, such as parenting arrangements and financial settlements involving property division, child support and spousal maintenance. The issues involved are just the same as those a family court (or the Child Support Agency) would determine. Like many family law matters, sometimes in collaboration there are issues of family violence, and/or mental health issues. These can all be dealt with effectively and compassionately. Also, in collaboration, the agreements reached and the way in which they are recorded are no different and, in fact, can be more nuanced when compared to the more limited orders that, say, a court could make. Finally, although the law is there to guide the parties as they move towards an agreement, so too are their goals for themselves and their family.
How does it work exactly?
In a nutshell, Collaboration is a process where parties and all the professionals involved agree to resolve a matter without going to court. Such is the commitment to this process that if the couple cannot settle, the professionals have agreed that they will not help them to pursue litigation. This removes the threat often made in negotiations that if a party does not do something, the other party will commence court proceedings.
The hallmarks of collaboration are certainty and containment. The process is relatively confined and can generally be outlined as follows:
- Each party is represented by a specially trained collaborative lawyer;
- Interdisciplinary professional consultants are engaged to work together to focus on not just reaching a quick fix settlement, but on laying a foundation for optimum communications, transparency and problem solving, during the period of rapid change the parties and their children can experience after separation;
- All professionals and the parties sign a collaboration agreement effectively stating that the parties retain their right to terminate the collaborative law process and to take their issues to Court, but the solicitors and other collaborative experts or specialist professionals cannot go with them;
- Information is shared fully and freely upon request and communications are respectful. Hence, the aggression, suspicion and paranoia usually attached to family law matters recedes when compared to what is normally experienced in litigation;
- The couple works with the individual professionals to understand their unique situation and work on designing what their future might look like. All negotiations take place in joint settlement meetings with the parties and all the professionals present. The Lawyers do not adopt an adversarial stance or bargain as agents in the absence of their clients. Rather, interest-based negotiations are the preferred mode;
- Following each individual or joint meeting, the professionals “debrief” to discuss the events of the meeting, how best they can support the parties and the progress made; and
- Once agreements are reached, documents are created by the lawyers and signed by the parties.
Collaborative practice offers a way for separating couples to resolve their disagreements respectfully and with dignity. The process is private and confidential and encourages open and honest communication. It does not seek to pathologize or demonise the other party but rather, is a strengths-based process that helps reconstruct the future.
Finally, because the process is confined, costs are contained. Without a doubt, the overall collaborative process is less costly or stressful than going to court.
By Mary Louise Hatch. Lawyer, Collaborative Practitioner & Mediator