This article was written in support of Resolution's third Family Dispute Resolution Week, running from 24–28 November 2014. This awareness-raising week aims to highlight the alternatives to court for separating couples and their families.
Support the campaign on Twitter using #abetterway #ResolutionWeek and #familylaw
It may come
as a surprise to non-collaborative lawyers (that’s a technical term) that a
thoroughly uncollaborative debate still rages over whether or not practitioners
should be allowed to practise what’s been dubbed 'collaborative lite'.
So what is
collaborative law, in this week when we should all be making a special effort
to direct our clients away from the doors of the court? Many family lawyers don’t even understand the
practice although it’s been around in this country since 2003 and longer
(naturally) in the US.
mediation to the extent that it’s Without Prejudice and confidential. It’s not like mediation in that lawyers are
in attendance but their clients are in control of the process.
choose their lawyers in the conventional way but then the lawyers, assuming
they’ve been trained collaboratively, set up a series of roundtable meetings
and, at the end of the process and assuming it’s successful, a consent order is
filed with the court in the usual way.
selling point is that the lawyers have to step down if the process fails and
the parties end up going to court. And
here are some tips guaranteed to derail the process and cost you your client:
(1) Don’t bother to screen your client for
their suitability to the process. The
fact that they are angry and distrustful and not ready to have any kind of
conversation with the person who slept with their best friend/hit them/moved
the family savings to an account in Belize, is likely to be a bar to finding a
collaborative solution – at least any time soon. The process will fail, they’ll lose their
trusted adviser and you’ll lose the case.
Having said that, there are a
handful of very skilled collaborative practitioners who would see that as a
challenge and be able to overcome all the seemingly insuperable obstacles. I am not one of that handful and you probably
(2) Have long positional chats with your
client at the outset where you tell him or her what legal principals apply, the
strength and weaknesses of their particular case, and precisely how you are
going to make sure they get the best possible deal from their estranged
The whole ethos behind collaborative
law is that the couple have to make that journey together with guidance from
their collaborating lawyers.
(3) Take no account of the identity and
reputation of the lawyer who will be representing your client’s
ex-partner. Assume automatically that
they will approach the process in the same ethical, collaborative way that you
do. One of the joys of practice as a
collaborative lawyer is the unfamiliar but gratifying experience of discussing
the legal issues of both clients’ cases with the other lawyer without needing
to maintain your adversarial antennae.
It allows you to open your mind to practical solutions that might otherwise
have eluded you. And this really does
require a degree of trust that will simply never be there with some
practitioners. They have Trample the
Weak, Hurdle the Dead stamped on their DNA so collaborate with them at your
peril. Your client is entitled to rely
on you for this kind of insider knowledge.
Ask around if you haven’t heard of your opponent or, better still, try
and influence the choice of the other lawyer so that it’s someone you respect
and can work with.
(4) Ignore the fact that clients going
through a painful and possibly frightening period in their lives don’t care
about anything except keeping themselves and their families as safe as they
can, both financially and emotionally.
They have no interest in the process, only the outcome, so will be
turned off if they hear too much about it.
So go on about the process in a
thoroughly self-indulgent fashion, be inflexible about how to adapt it and make
them feel patronised and alienated. That
should derail it comprehensively.
Alternatively, think creatively about
how to adapt it.
So what’s collaborative lite? It’s where you go through the practicalities
of the process – roundtable meetings, no or minimal written communications, a
collaborative approach – but without signing up to the collaborative agreement
that means you have to step down if it fails.
There are good arguments on both sides of that particular debate, but
don’t bother to share them with your client.
law hasn’t taken off in the way we all hoped it would back in the heady early
days. It’s not cheap. It does require the solicitors to embrace the
possibility that they’ll voluntarily hand over their client if the process
fails and the big fees start to clock up (it’s true – we all make the most
money from cases that fail to settle and go to trial). And it makes us step outside our comfort zone
of settling down in our office bunkers and firing off threatening emails on a
But it’s so worth it. Getting to know both sides. Watching them communicate in a loving, if
sometimes wary, way. Helping them find a solution together while having a laugh
every now and again, and deepening your professional relationship with your
collaborative colleague. And you don’t
need Claudia Winkleman to tell you and your collaborative partner that you’re a
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.