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Collaborative Law - Not For Hippies

Collaborative Law - Not For Hippies
Written by
Neil Denny

There remains a great deal of scepticism about the Collaborative Law process. An American law firm recently wrote this about it: "Couples who are facing a divorce are not likely to hire lawyers who are more akin to mental health therapists and advocate that everyone get naked, jump in a pile, eat potluck and sign agreements mutually beneficial to everyone”.

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The suggestion is that collaborative law is for tree hugging, peace loving hippies, sitting around on bean bags, listening to whale songs and waiting to see if anything happens.

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The reality is that collaborative law benefits from a very strong structure built upon rules which determine how round table meetings will be run. Those rules are cemented together by the explicitly stated intentions of both parties and their lawyers to work creatively and collaboratively towards building a unique solution that works for your family. It is not all peace and harmony either. Quite often there will be tears, raised voices and frustrations. In that sense it is perhaps similar to the court process. The big difference though is that within collaborative law discussions we can manage those emotions, acknowledge them and deal with them. If the parties so wish, we can bring in a divorce coach or other similar adviser to help everyone make sense of what is going on emotionally.

The result is that the emotions you both experience can be addressed rather than leaving them to simmer into resentment after a court hearing which can create big frustrations and costs further down the line.

When a separating couple agree to use the collaborative law method at the end of their relationship, they commit to working together with their soon to be ex partner and their lawyers. They commit to keeping discussions moving forward and with one shared goal in mind, namely to resolve the situation they find themselves in. But how does it work?

Because the parties agree that they will not go to Court, nor threaten to go to court, everybody can talk in a much more open fashion about what they think is important. If an application does need to be made to court then both lawyers have to stop acting and cannot play any role within the court action itself. There is therefore no need for hidden agendas or posturing.

As the title suggests, collaborative law is not necessarily a soft option or the easy choice. These discussions can be very emotional. It may well be that the four way meetings are the first time that a couple has spoken to one another openly for several years

There are some radical changes in the approach between a normal court case and a collaborative case and they can be summarised as in the table below.

Conventional Case Collaborative Case
   
Your solicitor deals with communication You and your partner communicate directly
A judge might end up determining what is best for you and your family You and your partner define what is best for you and your family
A great deal of the work goes on behind the scenes in correspondence passing directly between lawyers Everything of substance is discussed in full view of yourself and your partner within the round table meetings
You hand over responsibility for your case to your lawyer You keep control of the process
The pace of progress, within a court based case, is determined by what time the court has available in its diary The pace is as fast or as slow as you like with meetings taking place as frequently, or otherwise, as you choose
Parties often come out of court hearings feeling hurt and attacked by their partner and their partner’s lawyers leading to resentment and perhaps sabotage It is possible to communicate in such a way that you and your partner can continue to work together after the separation
Children might perceive that their parents are being taken to court and become anxious Children see that their parents are talking to one another to work things out

 

Collaborative Law is not about keeping the peace, making separation easy or avoiding conflict. Quite the opposite. There is a lot of conflict within collaborative law meetings but that conflict is handled carefully so that the separating couple are able to navigate their way through very powerful emotions and come out of the other end with a lasting solution that everyone has had involvement in creating. After all solutions are far more likely to stick if the people concerned have played an active role in designing those solutions.

The article that I quoted from above concludes with the assertion that “Lawyers are trained to do battle for their clients.” I don’t know if I agree with that statement and I don’t know if that is what clients want from their lawyers. Perhaps that is not the point. Perhaps the more important point is what do people who have used collaborative law think?

In that regard I refer to the comment from one Wikivorce client who wrote on the forums;

“My ex-husband and I divorced via collaborative law. I think that's a main contributor to the way we can still talk to each other. I so hope I will never ever go through divorce again because it's horrible - but at least this time I don't feel damaged by the process itself.”

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Is collaborative law for you? Not if you are looking for an easy way out, or are looking for ways to avoid conflict or difficult conversations. But if you are looking to resolve matters in a respectful fashion, and want to preserve a civil relationship with your former partner once it is all over, then I would recommend you seriously consider it as an option.

Neil Denny is a collaborative lawyer working from Mogers Solicitors in Bath from where he serves clients from London across to Worcestershire. He can be contacted here on Wikivorce where he is known as Collaborativelawyer. You can find his video guide to the collaborative law process in the Community/Videos section.

 

 

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