Collaborative law in England and Wales: early findings

26 Feb 2009

Collaborative law is a relatively new process. Worldwide to date there is little empirical research into its development and benefits.

This study had two aims:

1. To gather baseline estimates of:

  • Numbers of collaborative cases undertaken
  • Growth
  • Characteristics of clients and cases
  • Success rates
  • Timescales and costs relative to other processes

2. A qualitative analysis of the process for lawyers and clients

In England and Wales, the first group of 12 lawyers trained in late 2003. By the end of 2005 around 600 had trained and by the end of February 2009 there will be over 1,250 trained collaborative lawyers in England and Wales.

Initially collaborative lawyers were trained by US based trainers. Resolution developed a bespoke collaborative training for its members which was rolled out in September 2006 and has now built up a team of specialist trainers in this area.

What the survey shows

  1. There has been a substantial increase in collaborative cases over the surveyed 2 year period (2006 and 2007) The respondents to the survey who represented 30% of the then trained collaborative lawyers reported opening 304 cases in 2006 and 558 in 2007
  2. It calculates that over 2,800 collaborative cases were opened and almost 2,000 were completed during the surveyed period. The vast majority of couples choosing the collaborative process had children
  3. 1/5 of the lawyers taking part in the survey reported that they had dealt with cases where the total family assets were valued at less than £100,000
  4. Over 1/3 of the lawyers taking part had dealt with cases where the assets were between £100,000 and £250,000
  5. Overall at least 2/3 of the cases settled collaboratively had settled earlier than they would have done had they been dealt with traditionally
  6. Some survey respondents who carry out publicly funded work reported that they had had clients who were eligible for public funding and whose cases would have been suitable for the collaborative process had public funding been available to fund it
  7. Settlement rates are high on average around 85% of collaborative cases settled
  8. The process allows the parties to achieve more flexible and creative solutions adapted to their particular family circumstances. Lawyers reported that some outcomes could not have been achieved via litigation or conventional negotiations examples include:
  • Cases involving cohabitants, with more generous settlements being reached than would have been possible if the law relating to cohabitants had been strictly applied. This was particularly welcome to the parties where there were children and involved them agreeing to treat their situation as if they had been married
  • Cases where financial contributions from other family or future family members were taken into consideration, in one case where there was agreement that part of the financial settlement would be funded by a portion of the proceeds of sale of a property owned by a new partner, and in another instance a parent in law loaned money to the ex spouse.

What the lawyers said

  • Effective screening to determine client suitability for the collaborative process is absolutely vital. Generally the lawyers look for sufficient degrees of trust and respect between the parties, some mutual recognition of needs, a lack of unrealistic expectations, an ability to communicate with and be civil towards each other and a shared concern for the welfare of the children and their relations with their parents and for their own relationship as parents. Evidence of domestic abuse, metal health issues or alcohol abuse might rule clients out unless safeguards could be developed
  • A high degree of trust between the two lawyers working on a case is key to its success
  • Providing legal advice is an essential element of the lawyer’s role. Several lawyers remarked that whilst collaborative clients want to know what the law is they may not necessarily want to follow what it is. Legal advice can also provide a reality check on expectations
  • They are increasingly recognising the value of bringing in other professionals to the process
  • Lawyers expressed dissatisfaction with what other processes provided for their clients, together with a belief that collaborative provided a better way. They were receptive to the collaborative process for personal as well as professional reasons one cited “feeling better about myself, and my job as a lawyer” another described discovering collaborative law as “a bit like a dark cloud lifting”.

What the clients said:

“we were both very pleased that the process existed, because it - was a kind of embodiment of the kind of divorce we wanted”

“it’s much better to be around the table discussing things rather than letters backwards and forwards between the solicitors - you’re able to keep a lot of goodwill between you by doing that”

“for me it has been a positive and helpful way of resolving something that I didn’t want in the first place”

“I’m glad that we did do it that way. Now standing here at the end of it, knowing how much it did cost, and how distressing even doing it that way was - I’m glad I didn’t have anything more stressful”

“I think anybody contemplating it would have to be aware of just how traumatic it is, to actually sit down and discuss something in very dispassionate terms, when you are not actually feeling that way”

“I was very happy - I’ve seen people go through long drawn out divorces and its horrible”

  • Its not easy! It can be an emotionally difficult process at least some of the time. Some found the 4 way meetings uncomfortable and tense. Some of these concerns obviously reflect the emotional difficulty of divorce in general, rather than the collaborative process in particular.
  • They needed good support from the professionals
  • More than half of those interviewed were very positive about the process and of the rest most were quite positive. Only one said the experience had been negative
  • Clients liked having other professionals such as counsellors and financial advisors in the process:

“I hadn’t thought about it [before] but it did turn out to be very welcome”

“I found [it] enormously helpful”.

Lessons for the future:

The research demonstrates the real importance of ongoing training - both advanced and revisiting basics. It highlights the importance of Practice and Organisational Development (POD) support groups, which enable lawyers to share experience and build trust with fellow lawyers with whom they will work collaboratively.

The survey also highlights client’s appreciation of the value of involving professionals from other disciplines in the process and we are presently developing training to encourage and facilitate greater interdisciplinary work.

Feedback from the research also reveals that there is interest in collaborative law from a client base eligible for legal aid. Resolution is in talks with the LSC and hope to persuade them of the value of extending legal aid to cover collaborative law.

The survey provides useful research and feedback, demonstrating the flexibility of the process to allow innovative solutions, and enable clients to fix their own timetables.

We’ll be evaluating how we build on the research gathered here and hope to encourage further research into the longevity of agreements negotiated collaboratively in comparison with more traditional approaches.