Collaborative Law

What is collaborative law?

Collaborative law, or collaborative practice, is a progressive legal process that assists parties to resolve their disputes in an amicable and future-focused way, without the worry or having to attend court.

Prior to entering the collaborative process, the parties agree to opt out of court proceedings. This enables them to work together in a transparent, open and respectful way to resolve their matters without the fear of one party issuing proceedings. The process is voluntary, so all parties must commit to resolving their issues without litigation.

Despite collaborative law being non-positional, each party is represented by their own lawyer. It is the role of the lawyer to both advocate for their client and work together with the other professionals to achieve the best outcomes. This is quite different to the more adversarial role that lawyers ordinarily take in legal matters and collaborative lawyers are specially trained to guide negotiations in a non-adversarial way.

In addition to the parties and their lawyers, collaborative law also includes a neutral, independent chairperson to facilitate and moderate the negotiations. A neutral financial advisor or accountant may also be included, if required, to assists the parties to understand and make decisions regarding complex financial aspects of property matters. Where parenting matters are involved, the chairperson will ordinarily be a psychologist with a clinical background who can assist the parties on aspects of their matter involving or affecting the parties’ children. In some instances, other child specialists may be brought in as neutral advisors.

This team approach provides a supportive and holistic environment for parties to communicate openly and take a goal-focused, family-first approach to resolving their dispute.

Prior to the commencement the collaborative law process, the parties and their lawyers sign a participation agreement that sets out the standards of conduct which each party will abide by in the collaborative process and other parameters for involvement by each team member.

Why use Collaborative Law?

Separating or divorcing from your partner is one of the most difficult and stressful events that most people will encounter in their lives. In the midst of this change, uncertainty about family law matters can cause further stress and anxiety for everyone involved, including children.

Holistic and family focused – Collaborative law is a family focused and holistic approach to an already difficult situation. By removing the adversarial aspect and reducing conflict between the parties, collaborative law offers better outcomes for the family unit as a whole.

Maintain relationships – Parents who are relatively amicable and wish to maintain a cooperative coparenting relationship are more likely to be able to do so following the collaborative law process than they are following a more adversarial process where they are pitted against one another.

Creative solutions to complex issues – A further benefit of collaborative law is that because the parties are working together and not in opposition, they are able to brainstorm more creative or “thinking outside the box” options for resolving their matter that are better suited to their family than the limited outcomes that might be available through more traditional processes. This is particularly useful in complex financial matters where traditional outcomes may not be ideal. An outcome that may be considered unconventional and unlikely to be the result of court proceedings may offer a practical and pragmatic solution in a collaborative process.

Supports parties emotional needs – Collaborative law offers a far more supportive process than traditional adversarial processes. Because of this, the parties emotional needs are better met within a collaborative law environment. This can be particularly important for parties experiencing high levels of stress or poor mental health following separation.

Empowers parties to control outcomes – Collaborative law is also an empowering process for the parties involved. The parties are assisted to remain in control of decision making rather than relinquishing that power to a third party. If one party is more vulnerable or requires additional support, the team of professionals will work together to ensure that they receive this, without the other party’s needs being neglected.

Nobody left behind – The collaborative law process works at the pace of the parties and not the other way around. If there is a disparity between the capabilities of each of the parties, the process will work at the pace of the person who needs the most assistance. This prevents parties from being “left behind” by a process that works too fast for them. This can be particularly important in complex financial matters where one party has managed the finances throughout a lengthy relationship and the other party is playing “catch up” in terms of their knowledge.

Affordable – Whilst the cost of collaborative law will vary depending on the complexity of the matter (and therefore how many meetings are necessary to reach a resolution), the collaborative law process is often more cost effective and/or expedient than traditional family law process (or comparative to other ADR processes such as negotiations between lawyers or lawyer-assisted mediation).

First steps

In order to start the collaborative law process, both parties will need to engage a lawyer who is collaboratively trained. If one party sees a lawyer first, that lawyer will be able to provide referrals for the other party for trained collaborative lawyers.

Unfortunately, if one party has already engaged a non-collaborative lawyer, it can be difficult to proceed with the collaborative process as this would involve them changing lawyers. Collaborative law is not able to take place with any untrained professionals because the process is highly specialised.

At Starling Family Law, we have collaboratively trained lawyers who are able to assist you. Please contact our office to arrange an initial appointment and let us know that you are interested in finding out more about the collaborative law process.