Collaborative Law crossed the Atlantic from America around 2005. It had a very popular start but has fallen away somewhat as a method of resolving issues of finances and children when a couple separate.
As no fault divorce came into force on 6 April 2022, we should now be asking ourselves if it is time to use Collaborative Law in suitable cases.
What is the difference between Collaborative Law and Mediation?
Collaborative Law is very different from mediation. With mediation, generally, both parties meet with the mediator. The mediator can provide information and assist them through the process. However, the significant difference is that the mediator can’t advise. Both parties can have their own solicitors in the background to advise them. Occasionally, solicitors also attend mediation, but most couples meet the mediator on their own.
The difference with Collaborative Law is that discussions and negotiations take place at what are called round table meetings. Both parties attend with their solicitors, who must be qualified in Collaborative Law in order to offer.
What are the benefits?
Taking this approach avoids a couple finding themselves in the position where they have formed different, and sometimes opposing - or even polarised - views where this could have been avoided. With the best will in the world solicitors advise their individual clients as to what they may achieve and what outcome they should seek with their client’s best interests in mind. For example, the solicitor for one party may tell them that the matrimonial home will have to be sold. The solicitor for the other party may consider that there are legal arguments for it to be retained. If the couple agree with their advisers, they are then in different positions as to what should happen to their former home together.
When a Collaborative Law approach is taken, discussions on important matters such as whether or not to sell the family home can take place openly at the round table meeting. Each solicitor can set out their reasons and, once all of this information is out in the open and the respective positions have been discussed, it is much more likely that the issue can be resolved.
In this situation, if one person wants the house sold it may be because they want a share of the proceeds for a deposit to purchase another home for themselves; or it could be they do not see how it would be possible to continue to pay the mortgage. Discussion may bring out whether there are other options. Could the mortgage be changed to an interest only? Can a further mortgage be obtained on the house to provide a deposit for the party who will not be living there? These solutions would mean that the sale is deferred to a later date and the proceeds divided at that time, taking into account the sum that one person has already received. Such matters can be addressed quite quickly in one meeting rather than be the subject of lengthy correspondence between solicitors.
Perhaps the biggest benefit for a couple who choose to resolve matters through the collaborative process, is that each of them feels they have been heard, have been able to put their views, but they have also had the benefit of legal advice as their collaborative law solicitor is sitting with them. Both solicitors have been able to raise areas of disagreement and to facilitate a face-to-face discussion in order to resolve them.
As a result, it is much more likely that, at the end of the collaborative process, both of parties will be able to continue with a good enough relationship to co-parent the children and even, for example, attend their children’s university graduation.
It is well worth considering this approach to achieving a settlement in conjunction with no fault divorce.