Alternative dispute resolution: collaborative law

    Collaborative law involves the parties both instructing lawyers and avoiding court by trying to reach an agreement through meetings with each other and their lawyers. All meetings between the parties are carried out face to face with the lawyers present. This approach is designed to encourage the parties to work together, discuss the issues, and come to an agreement, as opposed to having contact via their lawyer’s letters only. It is not possible to instruct any solicitor – the solicitor must have been trained in collaborative law (a ‘collaborative lawyer’).

    What happens in the collaborative process?

    One or both parties will need to instruct a collaborative lawyer. The first meeting is likely to take place one on one with the party’s own solicitor. If just one party has approached a collaborative lawyer, enquiries will need be made as to whether the other party wishes to consider the collaborative process. If they do, they too must instruct a collaborative lawyer.

    Upon entering the collaboration process, each party’s solicitor will sign an agreement that, should an agreement not be reached, they will cease to represent the party.

    Once the process has commenced, the parties will attend a number of meetings with lawyers present. They will be encouraged to identify all the issues between them. The lawyers are likely to put a reasonably flexible timetable in place for matters such as disclosure and the appointment of expert witnesses. The appointment of expert witnesses is encouraged where there is a dispute as to the value of the assets (e.g. estate agents for the valuation of the home, pension experts for the valuation of a pension).

    Throughout the process, the parties have proper legal advice from each of their solicitors at the meeting. This can be particularly useful where the solicitors have broadly similar views on some issues, as it can lead to some issues being resolved quite quickly, rather than having to go to and fro through correspondence.

    If an agreement is reached, the solicitors can draft the necessary documents and file them with the court to be sealed.

    Will I be bound by what I say in the collaborative law process?

    Other than the financial disclosure, the discussions in the meetings are privileged and confidential. If the collaborative law process fails, the parties will not be able to rely on the discussions in later court proceedings.

    Advantages

    • Lends itself well to children matters where all the smaller details can be agreed regarding the children arrangements.
    • Actively encourages the parties to retain contact with each other so that they can work together for a long-term solution and keep relations friendly.
    • The parties have more control over where the discussions take place and the timescale for such discussions, as they will not have to go to the court, nor will they need to be tied to the court timetable.
    • The involvement of solicitors throughout the process means that it is less likely that any legal issues will be left unresolved when agreement is reached.

    Disadvantages

    • If the parties do not reach an agreement at the end of the process, they will need to instruct new legal advisors and pay legal costs for court proceedings on top of the collaborative law process which could be rather costly. In general, the costs can be difficult to estimate as it is not clear from the outset how many meetings will be required to facilitate a working agreement between the parties.
    • Collaborative law will not work for everyone: the process relies on full cooperation between the parties so if one party does not enter the process willing to come to an agreement, the process will fail. Collaborative law works better where the parties are able to communicate openly and frankly with each other; thus if there has been a history of controlling behaviour, or there is reason to distrust one party, it may not be the best process.
    • Numbers of collaborative lawyers are rising, but there are still not as many collaborative lawyers as regular divorce lawyers, so your choice of representation may be a little limited.