It can be overwhelming for people who start researching process options when they are faced with the already challenging time of a divorce or separation. The offering of out of court process options has never been greater, but too much choice can also be confusing.
The collaborative process is, in my view, currently an unsung hero. I am often asked by clients what it is. When I introduce the concept, I find my clients tell me that it is a given that they will be collaborative with their partner. Having a framework and written agreement that underpins this collaborative intention takes things further in the collaborative process and these are its main features:
The participation agreement: this is your written commitment to avoid court. It is one thing to have good intentions but when working within the collaborative process, you and your solicitor (who have undertaken specific training) and your partner/spouse and their solicitor, sign the participation agreement. The most important wording in this document is the agreement not to go to court. If either you or your partner wants to issue a court application, you will need to change your solicitor. This can seem an intimidating prospect, but it should actually feel reassuring as it avoids those heat of the moment threats of a court application and you still have the safety of taking legal advice privately from your solicitor outside of the roundtable meetings.
Roundtable meetings: There will be minimal solicitor letters, saving you time and money. Discussions are confined to meetings around a table with both clients and solicitors present. Generally, there is no discussion between solicitors between meetings about significant points and proposals are always discussed around the table. In this way it is possible to discuss a proposal in real time rather than having to send it and wait for a response.
Legal advice: Although you can absolutely speak to your solicitor privately, it is common to be open in the roundtable meetings about the law as well as the range of outcomes around the table, to help generate proposals.
Sharing aspirations: at the first roundtable meeting you will be encouraged to share your aspirations for the process and beyond – this may include a wish to build a positive co-parenting relationship for your children. These aspiration statements are powerful.
Bringing in other experts: when working collaboratively I often bring other professionals into the process, such as financial or tax experts. Couples can save on costs by using a shared expert who understands and is committed to the collaborative principles. Those experts also sign the participation agreement.
Flexibility: the agenda for each roundtable meeting is set by you and you can meet as frequently as you choose (or as is needed to reach a settlement). There is no one size fits all approach like there is with the court system. Even the format of the financial disclosure can be tailored to your particular situation.
The collaborative process is robust: individuals remain able to take personal legal advice and will be required to meet the same legal expectations in relation to financial disclosure. I often see the collaborative process used for agreeing pre and post nuptial agreements, but its benefits mean that it is appropriate for reaching agreements across the full spectrum of family law issues.
When asking clients for feedback on this process at the end, they tell me they feel they have engaged in a process that enables the preservation and respect of their former partner and, where applicable, for the benefit of their children. They tell me they felt able to make quick progress and appreciate the roundtable format while also having the support of their solicitor present.
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