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Collaborative law FAQs

What is the difference between collaborative law and mediation?

In mediation the mediator is a neutral third party who does not give either of you legal advice and will not side with either of you.

The mediator is there to facilitate the discussion between you and your partner and has a duty to advise you each to take separate legal advice, either during the process or after. Lawyers are rarely present during the mediation sessions.

Any settlement discussed during mediation is only binding once each of you have had the opportunity of taking separate legal advice and have transferred the agreement into a separate consent order of the court. The mediator cannot prepare the court documents for you nor finalise the process.

In collaborative family law, you each have your own lawyer throughout the process advising you and presenting your case on your behalf. If you don’t feel up to negotiating on your own behalf, aren’t sure about the financial side of things, or feel vulnerable when in the sole presence of the other party, collaborative family law could be preferable to mediation.

If you reach agreement during the collaborative process your lawyer can obtain the divorce decree and prepare the court papers to obtain the consent order spelling out what you have agreed.

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How can I decide whether to go for mediation, collaborative law or follow the standard process and which is cheapest?

Your solicitor will be able to discuss with you the merits of the various options and help you to choose the best one for you. Picking the best option for you and your partner may depend on factors like you and your partner’s willingness or ability to cooperate with each other, whether any violence has been involved, where you and your partner live.

The cost will depend on how quickly you are able to achieve a result and how much work your solicitor has to do on your behalf. If one of you is self employed or owns a business, expert help from accountants/financial advisors may be needed. This will add to the cost, but costs should only be incurred where they are proportionate to the result you’re trying to achieve. If you go to court, it is common for your solicitor to instruct a barrister to represent you. This does not necessarily add to your expense more than if your solicitor were representing you.

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How does the collaborative process work?

Once you have decided that the collaborative process is for you, what will happen next?

• You will both meet individually with your separate lawyers to talk about what to expect in the collaborative meetings which are usually referred to as “four way” meetings as they take place with you and your partner and your respective lawyers. You and your lawyer will discuss what you both need to do in order to prepare for the first “four way” meeting
• Your lawyer and your partner’s lawyer will speak to each other either face to face or over the phone in order to plan for your first meeting

The first four way meeting:

• At the first four way meeting the lawyers will make sure that you both understand that you are making a commitment to working out an agreement without going to court and you will all sign an agreement to this effect
• You and your partner will be invited to share your own objectives and you will all plan the agenda for the next meeting. This will depend on your own individual circumstances but might typically include a discussion about how the children are responding to the separation
• If time permits you may also go on to discuss how financial information will be shared and agree on who will bring what financial information to the next meeting

Subsequent four way meetings:

• Subsequent meetings will deal with you and your partner’s particular priorities and concerns. You might, for instance, look at involving other professionals such as specialists in pensions and financial planning or people trained to assist children in understanding and coping with the changes that your divorce or separation will bring to their lives. The meetings will enable you to reach agreement on how the finances will be shared or what arrangements need to be made for the children

The final meeting:

• In the final meeting documents detailing the agreements you have reached will be signed and your lawyers will talk you through anything else that needs to be done in order to implement those agreements. Sometimes a firm timetable for implementation will not be possible, for instance, if the family house needs to be sold

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What happens if my partner/spouse does not give full and frank financial disclosure or undertake the collaborative family law process in good faith?

Under the terms of the collaborative agreement, the lawyer must withdraw from acting for their client if he/she has withheld or misrepresented information intentionally or is participating in the process in bad faith.

Likewise, it is open to your collaborative family lawyer to advise you to withdraw from the process if they think that your partner (or indeed their lawyer) is not keeping to the terms of the agreement.

If you consider that your partner is unlikely to be honest during the collaborative process and is likely to lie about his or her financial affairs, then collaborative family law is unlikely to be a good choice for you.

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What if after issuing a settlement agreement in collaborative law process, I discover that my partner has failed to disclose relevant information?

The settlement agreement reached during the collaborative family law process is no different from any other negotiated settlement. If the outcome of the settlement would have been different if such information had been available, then it is open to you to seek to overturn the agreement, even if it has been made into a court order.

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What kind of information and documents do I have to provide in collaborative family law negotiations?

You and your partner sign a binding agreement to disclose all financial information and documents that relate to your family.

In any divorce, where finances are being sorted out, you always have this obligation to disclose all financial information.

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