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The Collaborative Choice

Over the last decade divorce rates have increased, the efficiency of the Family Court has decreased and the lives of families have been put on hold. Whilst this has been happening new structures to assist family law issues has grown. One of particular success is Collaborative Family Law.

What is it?

Collaborative Family Law is an alternative to traditional court litigation. In fact, prior to commencing the process the parties involved and their lawyers sign a ‘Participation Agreement” which is effectively a contract that states that neither party or their legal practitioners can go to Court by undertaking this process.

The process then works through negotiations (generally face-to-face) between the parties, their respective lawyers and a facilitator to breakdown and solve the issues important to the parties. Such issues do not have to be legal issues that the court would generally recognise. This can be both in relation to children and financial issues. Because of this, the parties involves must disclose all relevant information and be willing to resolve the issues.

If required, experts and specialists may also be engaged in this process so that the interests of all parties are protected by getting expert advice. This may include financial planners, divorce coaches, psychologists, valuers and counsellors.

Pros

  • Clients are present at all times during negotiations and are empowered to participate in their own negotiation.
  • Confidentiality and legal privilege applies to the process, subject to professional obligations of experts, for example the risk/abuse of a child.
  • Clients are in control of the process. The clients choose the professionals involved, the frequency of meetings and the issues to be determined.
  • Clients must pre-approve expenditure for all steps of the process, and agree on how the professionals are to be paid.
  • Unlike traditional lawyer negotiations, non-legal issues are not deemed irrelevant to the discussions.
  • Clients can develop better communication and parenting skills.
  • Clients with particular needs and vulnerabilities may cope better with negotiations when the threat of litigation is removed.
  • It is a less stressful process for practitioners who do not have the deadlines of the court and other solicitors.
  • It has a win-win outcome and not win-lose at the expense of one of the parties.
  • The clients can choose whether or not they want to conduct a detailed analysis of contributions. As the process is future-focused, “needs” are considered by both parties in the context of the best outcome for the family as a whole.
  • If one party intentionally withholds information their lawyer must stop acting for them or your lawyer can advise you to withdraw from the process and the settlement agreement can be overturned even after it has been approved by the court if the settlement had of been different if different information was available.
  • If both parties are cooperative and provide requested information in appropriate self-set time limits, the process is generally quicker and cheaper than going through the court based process.

Cons

  • It is not advisable for matters involving family violence, there are children at risk of violence or abuse, the parties are hostile towards each other and denigrate each other or for people with serious mental health issues.
  • Clients have no access to Rules of the Court to ensure access to information and documents (known as “discovery”), or compliance with processes.
  • The client is required to engage new lawyers if the collaborative process does not result in settlement.
  • There is no authoritative decision-maker in the room.

Prospects of Success

Whilst it is a relatively new process, collaborative law has proven to have a 98% success rate in the United States and Canada because everyone involved agrees to try and reach settlement. It has The lawyers and any independent experts involved must withdraw from the matter completely should collaboration fail. Because of this it is in the parties best interests to work together so that engaging in new legal practitioners and experts and further delays, expenses and the traditional court process is avoided.

You may have heard the words collaborative law but don’t know what it means or have heard people not involving the courts in their family law matter. Our Parramatta office offers services and collaborative law practitioners who can assist you in finding out more information about this process. Catherine is an Accredited Family Law Specialist and is a part of the Greater Sydney Collaborative Lawyers who can be contacted on (02) 8833 2500.

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