This Plain English Guide provides an overview of how the collaborative Family Law process works.
“Collaborative practice offers clients an alternative to more traditional lawyer‑led negotiation at court proceedings. A key feature of a collaboration is that the parties involved commit to resolving their family law issues and concerns cooperatively without the threat of court proceedings.”
What is Collaborative Family Law?
Collaboration in family law involves resolving family law issues, concerns and disputes with the support of lawyers and other experts as needed, in a series of meetings, much like a mediation. There are however key differences in a collaboration. A significant difference is that collaboration involves both parties and their lawyers agreeing and committing to finding an out-of-court solution. Another is that parties work through the steps towards a resolution, including all planning and advice given, with their lawyers and the other party present.
In a collaborative family law process, the clients and their lawyers agree to work together to find a fair solution to whatever financial or child-related issues need to be addressed without involving the court, or the threat of court proceedings. As a client in a collaborative process, you remain in control of the process at all times.
A collaborative approach allows for a greater degree of co-operation between a range of professionals involved in helping families. Clients involved in a collaborative process will have access to the skills of child specialists, counsellors, accountants and financial advisers who can bring their expertise to the process when necessary, thereby freeing up the lawyers to concentrate on helping their clients in the negotiations and focusing upon shaping a fair settlement.
Is my case suitable for the collaborative process?
A Collaboration to resolve a family law issue or concern is not for everyone. An essential part of collaboration is the shared willingness you and your partner have to resolve your dispute, without using threats of court to force outcomes. A collaboration is intended to create transparency; parties give mutual input in finding solutions and then work through the process of coming to agreement.
A collaboration may work for you if:
- you want a dignified, non-aggressive resolution to your family law issues and concerns;
- you and your partner have children and wish to resolve matters by agreement, with your children’s needs and interests at the forefront;
- you want to avoid possible delays of up to 18 months‑2 years associated with court matters;
- you want to keep control over the way your family law issues and concerns are resolved and how your financial arrangements are restructured after a separation, or how arrangements for your children are decided, with help from experts;
- you do not want decisions about your finances or children to be made by a judge;
- you would like more direct access and support from your lawyer to help you negotiate in face-to-face meetings.
- you and your former partner do not want your private affairs and personal business aired in a public courtroom.
Collaborative family law will not be the right option for you if:
- your main objective is to “seek revenge” on your partner;
- you are looking for a “soft option”;
- you think that the process will allow you to “out-manoeuvre” your partner;
- you are hoping to get away with giving less than a full and frank financial disclosure!
If there is family violence or other abuse, the collaborative family law specialists will need to consider very carefully whether your matter is suitable for the collaborative process. Other professionals may need to be involved in the process to make sure your interests, your partner’s and any children are protected.
What does Collaborative Family Law involve?
You and your partner will each retain a specialist family lawyer to advise you throughout the process. The lawyers involved must have at least 5 years’ experience in family law, and have completed specialist collaborative training.
Your lawyer will discuss with you in your introductory meeting or telephone call, if your case is suitable for a collaboration. Your lawyer may give you details for a collaborative coach, to further explore if a collaboration is suitable. The coach may then contact your former spouse/partner if you want to explore collaboration further. If both you and your former partner want to participate in a collaboration, the first meeting with all parties and the collaborative coach will be scheduled.
The majority of the negotiations will take place at “5‑way” face-to-face meetings between you, your partner, the lawyers, and the collaborative coach, who manages communication and facilitates the process. The coach is an essential part of the collaboration and is involved and present at all 5‑way meetings. Correspondence between lawyers is kept to a minimum because the advice given to you and your partner by each of your lawyers is given during the “5-way” meetings. By being part of the negotiations, you and your partner keep control of the process. The scope for misunderstandings is reduced and you will be supported in communicating with each other in a non-confrontational way. This is particularly important if you are parenting children together after separation. The collaborative process is transparent for all parties.
At the first 5‑way meeting, the parties, lawyers and coach will all sign a Participation Agreement setting out the ground rules for the collaborative process. A further essential aspect is that if either client commences court proceedings, both collaborative lawyers must discontinue their involvement in the matter. This means you, your former partner and the lawyers involved have a shared interest in reaching agreement through the collaborative process. Once a settlement is reached, the lawyers will draw up legally binding settlement documents that achieve the agreed outcomes.
What about confidentiality?
All professionals involved in the collaborative process are bound by their own professional conduct rules and have a strict duty of client confidentiality. Discussions or documents, (excluding financial disclosure documents exchanged), are legally privileged and conducted on a “without prejudice” basis which means that they cannot be referred to in court. If the collaborative process fails, you and your partner cannot use any of the documents exchanged, for any court proceedings.
How much will it cost?
The lawyer who assists you will charge for their work based on their hourly rate, which reflects their family law experience. Coleman Greig will explain our charging structure and will go through our firm’s terms of business with you if you engage us to assist you. As long as you and your partner act in good faith, provide the information requested of you within the agreed timeframes and cooperate in the process, the collaboration may be quicker than the traditional, court-based process.
How the costs of the collaborative process are paid is often dealt with at the first 5‑way meeting. Unless there is an agreement to the contrary, however, you and your partner will each be responsible for your own lawyer’s costs and will be invoiced monthly so that you receive a regular update on the position of costs.
How can we get a collaborative case started?
Both parties to a collaboration must have collaboratively trained family lawyers. Most collaborative family lawyers (and other professionals) belong to collaborative practice groups.
If you think that your partner may be interested in trying a collaboration to resolve your family law issues and concerns, we can write to your partner suggesting collaborative family law, or have a collaborative coach speak with him or her to discuss collaboration as an option. You can also discuss this with your former partner directly, if you are comfortable doing so. Details of all collaborative practitioners, coaches and other experts are available on the AACP website.
Coleman Greig’s Celia Pitcher is a registered Family Dispute Resolution Practitioner and a trained Collaborative Lawyer. She is a member of the NSW Law Society, Family Law Section of the Law Council of Australia, Collaborative Professionals NSW, the Australian Association of Collaborative professionals and is also a Graduate Fellow of the College of Law. If you would like to find out more information, contact us.
Disclaimer: The information provided in the document is a general summary and is not intended to be nor should it be relied upon as a substitute for legal or other professional advice.