FAMILY LAW WITHOUT THE FIGHT
Your Questions Answered. . .
Couples who are considering using collaborative family law for resolution of their dispute tend to have a number of questions regarding the process. This is perfectly normal, especially since most people assume that separation has to involve court action for parties to reach a “fair and equitable” solution.
Listed below are a few common questions, with answers, that may help you to decide whether collaborative family law is an option you would like to pursue.
What does Collaborative Family Law involve?
What is the difference between collaborative law and mediation?
What about confidentiality?
What happens if one of the parties doesn’t give a full and frank
financial disclosure?
Why can’t we go to court?
Is my case suitable for the collaborative process?
It will be of interest if the following are important to you:
Collaborative law will not be the right option for you if:
How much will it cost?
How can other collaborative professionals help?
How can we get a collaborative case started?
- You and your former partner each retain a family lawyer to advise them throughout the process.
- The lawyers will discuss with each party in an introductory meeting or telephone call whether the case is suitable for the collaborative process.
- The parties and their lawyers will all sign a Participation Agreement setting out the rules for the collaborative process and providing that if either party commences court proceedings, both collaborative lawyers will be disqualified from representing either party.
- The foundation of the collaborative process is an understanding that the parties (and their respective lawyers) will act in good faith, be open and honest in dealings with one another and respect that different views will need to be expressed to achieve a fair settlement.
- The majority of the negotiations will take place at "4 way" face-to-face meetings between the parties and their lawyers. Correspondence between lawyers is kept to a minimum. By being present throughout the negotiations, the parties retain control, the scope for misunderstandings is reduced and they are assisted in communicating with each other in a non-confrontational way, which is particularly important if the parties have children together.
- The meetings are minuted and action points for future meetings agreed. Where appropriate, parties will be encouraged to draw on the skills of other specialist advisers, such as accountants to assist with financial disclosure, or child counsellors to discuss an issue which may have arisen in relation to the care of the children.
- Once a settlement is reached, the lawyers draw up a settlement agreement.
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What is the difference between collaborative law and mediation?
- Mediation involves a neutral third party who facilitates discussion between you and does not give legal advice. In collaborative practice you have your lawyer with you in 4 way meetings who will advise and support you throughout the negotiation. You will also hear the advice your former partner is getting throughout the process.
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- All professionals involved in the collaborative process are bound by the professional conduct rules of their respective professional organisations and have a strict duty of client confidentiality.
- Any discussions or documentation (with the exception of financial disclosure documentation (see below)), are legally privileged and conducted on a "without prejudice" basis which means that they cannot be used in court
- This confidentiality will be overridden where any of the professionals involved have a professional obligation to make a report to a relevant authority, for example, if a child is considered to be at risk.
- If the collaborative process fails, you and your former partner may not use any of the information or documentation generated during the collaborative process other than that relating to financial disclosure.
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What happens if one of the parties doesn't give a full and frank financial disclosure?
- This does sometimes happen in mediation or in the conventional legal process, and can happen here too. Under the terms of the Participation Agreement, a lawyer must withdraw from acting for their client if he/she has withheld or misrepresented information intentionally, or is participating in the process in bad faith. Likewise, it is open to your collaborative lawyer to advise you to withdraw from the process if they do not consider that the other party, (or their lawyer), is keeping to the terms of the agreement.
- If you discover that the other party has failed to disclose relevant information after a settlement agreement has been reached through the collaborative process, then collaborative law is no different from any other negotiated settlement. If the outcome of that settlement would have been different had the information been available, it is open to you to seek to overturn the agreement, even after if it has been approved by the court.
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- Participants in a collaborative negotiation agree not to go to court and cannot use the threat of going to court as a means of pressuring the other party to agree to or to accept a position. This helps to keep negotiations in good faith and to honestly consider the interests of the parties. Accordingly, going to court is not an option for your Collaborative Lawyer. Going to court is only possible if there are urgent reasons that require it (eg: to preserve an asset) and only after the collaborative process is terminated and new legal representatives appointed.
- The reason that collaborative law has been successful in other counties is that the lawyers are disqualified from acting for the client should collaboration fail. A disqualification agreement underlines 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 beginning not to go to court, you, the other party and the lawyers can be encouraged to reach creative settlements, (of course having regard to the legal position), but having you and the particular interests of all the parties involved at the forefront of any settlement proposals.
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- Collaborative law is not for everyone.
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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 former 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 created 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.
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- 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 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 former partner and any dependant children are adequately protected and represented.
- As with the conventional legal process, different lawyers have different charging rates. The lawyer you instruct will explain to you the basis of their charging structure and will go through their firm's terms of business with you.
- As long as you and your former partner act in good faith, provide the information requested of you within the timeframes agreed and cooperate in the process, the collaborative process will inevitably be quicker and cheaper than a dispute resolved by a court hearing.
- The issue of how the costs of the collaborative process are to be met can be addressed at the first 4 way meeting. Unless there is an agreement to the contrary however, you and the other party will each be responsible for your own lawyer’s costs and will be invoiced in accordance with your own agreement with your lawyer.
- In many disputes, especially matters involving children, there are other professionals such as counsellors and family therapists who can offer expert advice and assistance to you. Learning how to communicate with one another and resolve conflict as it arises will be invaluable long after the ‘legal process’ is finished.
- In disputes involving financial matters, financial advisers or valuers or accountants may be needed to provide information or advice. Similarly, environmental experts or surveyors may be called upon to assist the process in other types of matters.
- The collaborative process is very flexible and other professionals may be used in a team approach to work with or alongside your lawyers. You may wish to see them separately or together in a meeting with the lawyers or they may report to a meeting. How such an expert is used is decided and agreed by you.
- Lawyers in the Illawarra and Shoalhaven and in other areas of New South Wales, as well as other States in Australia offer collaborative law as an option in their dispute resolution services in the areas of family law, civil disputes and commercial law. It is essential that both parties have collaboratively trained lawyers. Most Collaborative Lawyers (and other professionals) belong to practice groups and are members of Collaborative Professionals (NSW) Inc.
- If you think that the collaborative process may be an attractive way of resolving your dispute, contact one of our members.
- Alternatively, your lawyer can write to the other party suggesting collaborative law as a means of resolving your dispute and invite him/her to participate, or you can discuss this directly with the other party concerned.
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