In March 2020, my colleague, Rachel Nicholl, and I qualified as collaborative lawyers. It has opened my eyes to a better, kinder, client-led and solution focussed way of working. I have already been able to put into practice the excellent skills that I have learned from the course, which has influenced and enhanced my practice on all levels. In a separate blog post, Rachel explained the sort of family law cases that are most suited to the collaborative process and the benefits over the court system. In this piece, I am going to explore what the process looks like in practice, its history and how it has evolved worldwide.
The collaborative movement was founded by Stu Webb, a lawyer based in Minnesota. Stu practiced family law for more than twenty years when, during the late 1980s, he became interested in mediation and other forms of dispute resolution. His rationale was that by removing court as an option for resolving disputes, lawyers would have to rise to the challenge of solving problems between themselves with their respective clients. From this, collaborative law was born.
The collaborative process is a different way of resolving family issues, whether this is arising from separation or divorce or relating to Nuptial Agreements or Cohabitation Agreements. It is about reaching solutions together.
It involves each person instructing their own collaboratively trained lawyer and each party and their respective lawyers all meeting together to resolve matters, more traditionally face to face in the same room (called a four-way meeting). However, it equally lends itself to remote meetings by video conferencing. As such, it can be effective for both domestic and international matters.
Collaborative lawyers’ function as active legal advisors and negotiators alongside their clients at the centre of the dispute resolution process. Transparency and open negotiation is key.
Other professionals such as Family Consultants or Accountants may also join meetings to give neutral information that may assist the parties in the negotiation.
Each party signs a contract, called a Participation Agreement, which sets out that they will provide full disclosure, negotiate in good faith, and will not use the court process unless by agreement. If the collaborative process were to break down and one of the parties’ wishes to start court proceedings, both parties would have to dispense with the services of their current lawyers and instruct new lawyers. This ensures that all participants are committed to finding a solution through agreement.
The collaborative process will not be suitable for every situation. For the process to work it needs similar minded people with a commitment to reaching an agreement that is fair and practical for the whole family; a willingness to disclose, fully and honestly, information about all assets; skilled, trained solicitors and other professionals who are practised in working in this way, and with a commitment to reaching a solution without going to court.
The collaborative process is often explained to a client in the initial meeting, as part of a range of other options available. The collaborative practitioner will assess the client’s suitability for the process and whether this best meets their needs and objectives.
There may be a separate preparation meeting between the collaborative lawyer and their client for starting the process. The client may discuss their goals and objectives in choosing the process (which are written into an Anchor Statement prepared by the client), the lawyer will lay the foundations for good faith, interest-based negotiations. Consideration may also be given to what other professional support is needed. The client may share with their lawyer their anxieties about the process, trigger points for breakdown, and how this can be best managed.
The collaborative lawyers will then meet separately without their clients first. The lawyers will confirm their respective client’s expectations about the process, identify client priorities – but avoiding negotiating. The lawyers will work out an agenda and plan for the first four-way meeting.
During the first four-way meeting the attendees will collectively affirm the foundation and understanding about the collaborative process and review and sign the Participation Agreement. The clients will be invited to read their Anchor Statements aloud, to ensure that their voices and objectives are heard (these are often returned to as part of the process). A number of preliminary issues may be discussed such as what further information is needed to take matters forward (e.g. tax advice, valuations for a property) and agree disclosure. The meeting may close with recapping the areas discussed and setting the agenda and timetable for the next meeting.
Subsequent meetings will deal with the client’s particular priorities and concerns, as they may arise or develop. Client’s may work with other team members, both within meetings or separately, to resolve specific financial matters or issues relating to children. The clients with their collaborative lawyers will discuss progress and settlement options with the view to reaching an agreed settlement.
At the final meeting documents detailing the agreements reached will be discussed, explained and signed and the lawyers will talk through anything else that needs to be done in order to implement those agreements.
Collaborative law is practiced worldwide and cross borders. The European Network of Collaborative Practice (ENCP) is a network of European organisations (legal and non-legal) from countries including Austria, Germany, Italy, The Netherlands, Scotland, Spain and Switzerland. The networks founding principles are to promote and grow the collaborative practice in Europe and at cross-border level.
The International Academy of Collaborative Professionals is an international community of legal, mental health and financial professionals working together collaboratively to create client-centered processes for resolving conflict. It has over 5,000 members from twenty-four countries around the world.
If you are interested in the Collaborative Process as a way of resolving your particular family issue, then please do not hesitate to contact me.