The essential difference between collaborative lawyers and the traditional adversarial lawyer's conduct of a case on behalf of a client is that the inbuilt focus on obtaining a negotiated settlement is reinforced by the fact that in collaborative law, if settlement cannot be achieved and proceedings are issued, the collaborative lawyer must withdraw from acting.
All matrimonial/children's act lawyers are professionally obliged, whilst pursuing their client's best interests, to act on their behalf in a non contentious manner designed to facilitate negotiation. However, if the negotiations should break down then the traditional solution is the issue of proceedings with the Court so as to obtain the advantages of a Court timetable which will ensure that if settlement is not obtained under the pressure of the proceedings there will be a final resolution by way of final hearing. Whilst very few cases result in a final contested hearing, the fact that proceedings have been issued can often result in long term bitterness between the parties. Especially in those cases where there are children which will require a long term relationship between the parties to continue, this can have grave long term implications for the family.
The "Participation Agreement" lies at the heart of the collaborative law process. This is an Agreement signed by both parties and their respective lawyers. It sets out the intention to negotiate a settlement without the issue of Court proceedings and that all four will work towards arriving at a fair solution with the priority being any children's wellbeing and then that of the parties.
The Agreement sets out that all concerned must negotiate in "good faith", that is, to be truthful, open and honest, giving all information that may be relevant to the discussions, to avoid threats, inflammatory language and accusations, not to criticise the other parent in front of the children or to involve the children in their dispute.
The negotiations are confidential and cannot be disclosed at Court.
Where the negotiations are about money and property each party must make full and proper disclosure as to their means because without agreed figures it is impossible to have constructive negotiations.
As you will see from the above, the lawyers as well as the parties sign the Participation Agreement. Whilst their concern remains only with their client, they also commit to conduct the negotiations in good faith. For this principle of good faith to work, there must be a high degree of trust between the lawyers. This trust is based partly on both being members of the Collaborative Practitioners Group, which means that each lawyer will have attended the relevant training courses and liaised with other practitioners in the specialist practitioners groups.
Where both parties have decided to engage in the Collaborative Law process, there will be preliminary discussions between the respective lawyers and their clients and between the two lawyers to arrive at the arrangements for the first "four way" meeting. The Participation Agreement will be discussed and signed up by all concerned on that first four way meeting. Some interim arrangements may have to be agreed for the children and for maintenance. There will be discussion as to what disclosure of means is required (assuming negotiations are about money/property), how that disclosure will be made and a timetable for its production. The agenda will be set for the second meeting.
There will be further discussions between the lawyers and their clients and between the two lawyers before the second meeting. It may be that some disclosure of means can take place before the meeting and for valuations to take place and/or for figures to be agreed. The second four way meeting will probably be concerned with considering the disclosure process and what further steps may be required to arrive at hard figures. In some cases negotiations may commence on the second meeting.
By the third four way meeting the disclosure process should be complete. Negotiations take place and/or if they commence on the second meeting can progress further. Some cases will settle on this meeting which will subsequently allow for the formal agreement required by the Court to be drafted.
The Participation Agreement sets out that any one of the four participants to the agreement can withdraw or terminate from the process at any time. On the basis that proceedings are then issued, the parties' lawyers can no longer be involved.
Each party is liable to meet their own lawyer's costs unless otherwise agreed.
The Collaborative Law process should not be seen as a "cheaper option". Yes, where agreement is achieved then it is very likely that the parties' costs will be substantially less than under the adversarial process and certainly more quickly than under the traditional route. However, the process can be time intensive for the lawyers and therefore incur considerable costs for each party.
Upon agreement being achieved it is the lawyers' role to formalise the agreement in the legal document to be approved by the Court so that it becomes a Court order and binding on both parties.
The ethos of the process is that of the "good divorce". This articulates that divorce is a modern fact of life. The divorce process is seen as "bad" with tremendous ill feeling and mistrust resulting from the Court process. Whilst nobody would pretend that Collaborative Law will ever be easy, it has a high success rate for those people willing to engage with the principles of good faith and transparency to arrive at settlements not necessarily based on "the most I can achieve" but on "what I will settle for" based on interest rather than on positional bargaining. In the traditional adversarial bargain route both parties will take what may be extreme positions upon which they will negotiate and arrive somewhere between the two opening positions. Collaborative Law aims to avoid this positional "dance" with its financial and emotional cost for the parties.
Achieve the best result for both parties with collaborative law. Call Goodwins Family Law on 020 8423 3525