Navigating Divorce with Grace: Insights into Collaborative Law

Embarking on the journey of divorce or separation can be daunting, but there are alternative methods to traditional litigation that prioritise cooperation and mutual agreement. In this exclusive Q&A session, we sit down with Charlotte Bradley, an esteemed expert from Kingsley Napley, to delve into the world of Collaborative Law.

Discover insights, tips, and invaluable advice on how Collaborative Law can pave the way for amicable resolutions and a smoother transition during challenging times.

What is collaborative law/practice?

Collaborative family law (or practice) is a way in which a separating couple can, on a consensual basis, resolve issues without court proceedings.  You, your former partner/spouse and your respective lawyers all work together to resolve the various matters arising from separation, including the financial issues and the arrangements for any children.

How does it work?

Each client appoints a collaborative lawyer and the couple and their lawyers then consider the issues which should be addressed, and also which professionals to involve, for example a child specialist to consider the child arrangements, counsellors to support the parties and a financial professional to help with future financial planning. The lawyers and clients sign an agreement in which they all agree not to go to court and instead there is a series of meetings in which a transparent and open dialogue is encouraged. While each lawyer is representing their respective client, the professionals and the couple strive to work together as a team, with the joint aim of avoiding court proceedings. If either party decides they must go to court to obtain a final decision, then each of the couple need to instruct new lawyers.

How does it differ from other ADR options (such as mediation)?

Mediation uses a similar model of face to face meetings, but a mediator is not representing either of the couple. Although they can provide lots of information about options (the court process etc), the mediator is unable to advise on the likely outcome of any proposed settlement. For most family mediation, lawyers tend not to be in attendance (although increasingly, hybrid mediation where the lawyers are in attendance is becoming more common). Some individuals prefer the support of having a lawyer with them in meetings to help discuss and negotiate the various issues as happens in collaborative law.

What are the advantages?

Each client has the support of their trained collaborative lawyer who contracts with the couple to act in a constructive way and are encouraged to put all the family’s (including any children’s interests) at the forefront. For clients who feel insecure about attending mediation without their lawyer next to them (for example if there is a significant disparity in financial knowledge or bargaining power), collaborative law can be a good option as they can seek advice and support throughout albeit the advice that their lawyer gives is more transparent and negotiations should be less polarised than in the traditional court model. The possibility of counselling input and expert assistance around the children’s needs is actively encouraged. The flexibility of the process also enables other professionals to be brought in when needed, for example it is not unusual to bring in a financial planner and other professionals to help consider the future finances for the family including cash flow modelling, options around pensions etc.

What are the downsides?

Collaborative law is not suitable for everyone, and best serves couples who show a commitment to finding a solution to the various issues themselves but with legal support and advice. It is also only suitable for those who expect to give full and frank disclosure about their respective financial positions and other circumstances. Sometimes, if one of the couple wishes to delay the divorce (for example they intentionally postpone meetings etc), the collaborative process can be slow and costs can increase so careful managing of the process is required (and the lawyers and the couple need to be confident that the process is right for them before signing up). The collaborative agreement, requiring couples to change lawyers if the process breaks down and they want to go to court, can sometimes concern potential clients but that disqualification clause is important to encourage the couple and their lawyers to have the right solution focused mindset, to enable non-polarised negotiation and to resolve the issues.

Do you still have to go to court at the end?

No one needs to attend court and if agreement is reached, the collaborative lawyers can transfer the financial agreement into a draft consent order which is lodged at court (with financial summaries) for the judge to approve. It is also common in collaborative law (as it is in mediation) for the couple to prepare and sign a parenting plan setting out the arrangements for the children (although that is not routinely lodged at court).

How long does it take and how much does it cost?

Both answers depend on the issues to be resolved and how engaged the couple (and their lawyers) are to reaching a resolution. If they are committed to the process, and regular ‘four way’ meetings are diarised without delay in between, then collaborative law can be very quick as there is no court timetable applying. Or sometimes one or both of the couple can take time to come to terms with the breakdown of the marriage and resolve the various issues and need more time between four way meetings to reflect and to take advice from their collaborative lawyer. As to costs, they can vary depending on the amount of meetings and how complicated the issues are as the costs will depend on the amount of time the two lawyers spend on the collaborative case (typically based on their hourly rates). It can often be cheaper if the couple bring other professionals to assist on key areas (eg on the child arrangements or for cash flow modelling).

What else can it be used for (eg pre-nups)?

Collaborative law is very flexible and can be used in all areas of potential family dispute. It is particularly effective when couples are discussing the terms of a prenuptial or cohabitation agreement – so that each of them are having clear and transparent discussions with shared professional advice about their future plans and intentions, critical in my experience as different approaches on money and children can cause problems in a marriage or long- term relationship.

Is it a US import? What has changed in the last 20 years in the way it is used here?

So I did the first training in Europe just over 20 years ago (collaborative law having first started in the US and Canada), and with others, helped establish collaborative practice in the UK. What has changed is that we are more aware of the need to bring in non- legal professionals into the collaborative process (eg child specialists and counsellors) to really focus on the solutions for families on separation, with the law being only one small part.

How does it fit with clogged family courts, no-fault divorce, and other modern family law /societal trends?

Collaborative law is one of the now established methods of non-court resolution and, along with other non-court processes (like mediation) is actively encouraged by the government and the judiciary. Following the introduction of no-fault divorce two years ago to help reduce conflict between divorcing couples, there is strong encouragement for couples to resolve their differences without attending court, to reduce cost, the pressure on the court system and also to help avoid the effects of conflict on children which can be caused by long legal battles. And as new court rules come into law on 29 April 2024 to ensure that all couples consider non-court options such as mediation and collaborative law, collaborative practice is likely to be something that becomes of more interest to separating couples in the years to come.

Read more articles by Kingsley Napley.

About Charlotte Bradley

Charlotte Bradley is a Consultant and former head of the Family team at Kingsley Napley LLP. She advises on all aspects of family law, particularly issues to do with finances and children. She is author of the respected legal textbook on Schedule 1 cases. She is also an accredited mediator and collaborative lawyer, often working with high profile and high net worth couples keen to resolve their separation in private.

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