ALL YOUR QUESTIONS ANSWERED

What is collaborative law?

Collaborative law is a new approach to resolving disputes arising from marriage or relationship break down. Lawyers and their clients work in a co-operative open way to reach a settlement.

In the first instance the clients and lawyers sign a Participation Agreement which sets the structure within which the negotiations will be conducted. By signing a Participation Agreement the parties are demonstrating their commitment to resolving their differences in a respectful manner and without commencing Court proceedings.

Why should I consider collaborative law?

The underlying principles of collaborative law are to reach agreement through open negotiations whilst minimizing the apprehension and worry that often surrounds the discussion of issues regarding your children's future and your financial, parental and relationship futures.

Your collaborative lawyer brings with them their skills and expertise in problem solving and negotiating and works with you to reach a solution.

All negotiations are conducted in your presence and so you and your spouse or partner retain control of your matter.

How is collaborative law different from traditional Court proceedings?

When one party commences Court proceedings they file an Application Form with the Court setting out the Orders they want the Court to make. That Application is served on the other party and that party must then file a Response with the Court setting out the Orders that they want the Court to make. Both parties then have to go through a sequence of Court Conferences and Hearings that can take many months or possibly years before they have a final Trial where a Judge makes a decision as to what Orders will be made.

Through collaborative law separating couples and their lawyers work together, sometimes with other professionals such as valuers, accountants and child experts to find out what each party wants and how that can be achieved. The Court is not involved in this process and no documents are filed with the Court whilst the negotiations are ongoing. Once agreement has been reached that agreement can, if the parties elect, be sent to the Court to be made into an Order.

Do we ever go to Court?

If the parties are able to reach agreement through the collaborative law process then that agreement can be made into a Court Order or Binding Financial Agreement. If the parties wish to have the agreement made into a Court Order the paperwork is sent to the Court and it is not necessary for the parties to actually attend Court.

If the parties are unable to reach an agreement through the collaborative law process then it may be necessary for one of the parties to commence Court proceedings.

How do you go about working toward a settlement?

The lawyers and clients engaging in the collaborative law process communicate with each other through four-way face to face meetings as well as telephone conference calls and minimal written correspondence. In the four-way face to face meetings the clients and the lawyers sit down together and identify each party's issues, concerns and goals and look at ways to shape those into an agreement. These meetings are conducted in an open manner where all parties voluntarily provide full and frank disclosure of their position and provide any documents necessary to confirm their position.

What happens if one party is dishonest in some way, or misuses the process to take advantage of the other party?

By signing the Participation Agreement all parties are agreeing to behave in a respectful manner towards the other. They are also agreeing to be open and honest about their position and provide any documents necessary to confirm that position. If there is doubt as to the truth and accuracy of information then your lawyer can request documentation from an outside party to corroborate what the other party has said. By entering into the collaborative law process the parties generally accept that they will reach a negotiated settlement quicker if they are open and honest.

What happens if we hit an obstacle to settlement?

If the parties cannot reach agreement, then depending on the issue preventing agreement we would first seek the assistance of an outside professional such as a child expert, accountant or valuer to assist resolving the issues.

If, despite the best endeavours of the parties, their lawyers and the experts, agreement still can't be reached and going to court is the only alternative, then the lawyers and the experts must withdraw from the case.

Your collaborative lawyer will be able to refer you to a lawyer to conduct your case in court for you, but your collaborative lawyer can never represent you in court. They also cannot be witnesses in your court case. The same rules apply to the collaborative experts.

What is the difference between collaborative law and Mediation?

Mediation involves an independent neutral professional who facilitates discussions between the parties and helps them to reach an agreement. The Mediator does not provide legal advice to either party during the discussions.

In collaborative law the lawyers provide advice to their clients and help them assess realistic options. The lawyers then support the clients through the negotiation process to reach an agreement.

Can we trust that our lawyers won't just take our case to Court eventually?

Yes. It is a fundamental principle of the Participation Agreement that if the parties involved in the collaborative law process are unable to reach an agreement then the lawyers who have been representing those clients must withdraw from the matter when the collaborative process is brought to an end and Court proceedings are to be commenced. Because neither party can use the threat of commencing Court proceedings everyone remains focused on negotiating a settlement.