News & Articles
Understanding Collaboration
What is Collaboration with Juliette Ford
The question then most commonly asked is how do I/we get from where I/we are now, that is we have made this decision to actually separate, to that final point where we have an agreement/arrangement in place in relation to the financial arrangements and the children.
Over my years of practice, and I have been practising exclusively in the area of family law since about 1996, one of the most commonly asked questions is ‘How do I ensure that our decision to separate does not affect the children?’. Some clients will say something like “At the moment we are still talking, it is tough though but I want to continue to keep talking and I want to make sure that we can communicate for our children’s sake. We know that our relationship has ended but for our children we will always continue to be their mum and dad. It is really important that they see us continue in this role even though we are now in different households.” Others will say “We can’t talk. It’s impossible. But I still do not want my children affected”.
What I have found is that if you do not find a way for people to be able to communicate effectively right from the outset then very easily distrust and miscommunication happens which has a terrible effect upon ongoing negotiations and can destroy any chance of resolution by agreement and any semblance of an ongoing functional co-parenting relationship, even in circumstances where people do not like each other.
There are lots of ways for people to go about reaching a resolution. There are the traditional options of negotiation with each party engaging a lawyer and there being, if you like, a table tennis match with letters going backwards and forwards. There is also the option of people going to mediation. Mediation does work for many people and it is a very effective tool. However within the mediation context more often than not the negotiation is a positional one because if you fail at mediation then the option of going to Court is still on the table.
Of course litigation is an option. The way the adversarial process operates means unavoidably each person has to hop into the boxing ring, take up their position and argue that position saying things which may have lasting consequences. However when all is finished in Court, the Judge has delivered his or her Judgment and gone away, the lawyers have disappeared and moved onto their next case, a lot of the hurt from things said in the name of “the best interests of the children” or “just and equitable” property settlement are not forgotten.
All of these options are second best. From my experience the best option open to people to reach an agreement is a process called “Collaborative Law”. My firm was the first firm to actively practice in the area of collaboration. What makes Collaborative Law different? Well, the most important thing which makes Collaborative Law different is that each member of the separating couple and each of their lawyers sign a contract saying they will not go to Court. This means each person has engaged their lawyer only for the purposes of attaining an agreement. Right from the outset the lawyers are engaged focused on settlement.
All the lawyers’ knowledge and understanding is directed at an out of Court solution. Lawyers in this process do not act in an adversarial way and do not put forward positions which are un-winnable. Each lawyer in the process represents their own client’s interests but does this in a non-competitive interest based environment.
A lot of lawyers will say it is not necessary to sign the contract. I disagree. The effect of signing the contract changes the whole style of the negotiation from being a competitive (I’ll start high, you start low, we’ll end up in the middle) kind of negotiation to one which causes the conversation to focus upon “Well, what do you want to achieve out of this? What is really important for you? Is maintaining a relationship with the other person really important for the benefit of the children? Is making sure that the fact that you have separated and you are 55 is not going to have a terrible effect upon your prospects for having a reasonable life in retirement important? What we do is actually set an agenda which is specific and relevant to the particular couple’s needs, concerns and fears.
The legal option is a relevant option and of course legal advice is given at the appropriate time. That legal advice though is given in a very open way. Each member of the couple can hear what the other lawyer has to say and further each member of the couple can hear how discretionary the whole family law system is and therefore relatively arbitrary in that no Judge is ever going to reach or be able to form a Judgment which is specific to the particular needs of this particular couple. Collaborative law however makes this conversation the central issue for debate and where appropriate facilitates the engagement of experts in a cost effect and non-adversarial way to provide information and advice in relation to the issues on the table for discussion. The threat of litigation most importantly is taken off the table.
Collaborative law facilitates a problem solving environment allowing the parties to really drive both how quickly they want to negotiate and what they want to do in their final deal. The lawyers facilitate that communication, overcoming any roadblocks, providing their expert advice along the way. You may think your case is ‘too hard’, the other side won’t communicate, there is a lot of distrust, there is ‘too much water under the bridge’, ‘I can’t stand being in the same room as my ex-partner’ etc. All of these cases are potentially Collaborative cases. Collaborative Law is for everyone who wants a resolution but doesn’t want to go to Court, but needs the assistance of lawyers to get there.
I have found it a more cost effective process for clients and that the agreements reached are agreements which stick, they are not agreements which have been reached either by way of cost pressure or what might be generally called “litigation exhaustion.” Collaborative Law provides an opportunity for clients to reach an agreement which is child focused and sensitive to the particular financial needs and concern of a separated couple.
For more videos on collaboration click here
