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Family Law

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Court of Protection Practice and Procedure Conference 2016

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24 NOV 2014

Strictly collaborative

Strictly collaborative
This article was written in support of Resolution's third Family Dispute Resolution Week, running from 24–28 November 2014. This awareness-raising week aims to highlight the alternatives to court for separating couples and their families.

Support the campaign on Twitter using #abetterway #ResolutionWeek and #familylaw

It may come as a surprise to non-collaborative lawyers (that’s a technical term) that a thoroughly uncollaborative debate still rages over whether or not practitioners should be allowed to practise what’s been dubbed 'collaborative lite'.

So what is collaborative law, in this week when we should all be making a special effort to direct our clients away from the doors of the court? Many family lawyers don’t even understand the practice although it’s been around in this country since 2003 and longer (naturally) in the US.

It’s like mediation to the extent that it’s Without Prejudice and confidential. It’s not like mediation in that lawyers are in attendance but their clients are in control of the process.

Clients choose their lawyers in the conventional way but then the lawyers, assuming they’ve been trained collaboratively, set up a series of roundtable meetings and, at the end of the process and assuming it’s successful, a consent order is filed with the court in the usual way.

Its unique selling point is that the lawyers have to step down if the process fails and the parties end up going to court. And here are some tips guaranteed to derail the process and cost you your client:

(1) Don’t bother to screen your client for their suitability to the process. The fact that they are angry and distrustful and not ready to have any kind of conversation with the person who slept with their best friend/hit them/moved the family savings to an account in Belize, is likely to be a bar to finding a collaborative solution – at least any time soon. The process will fail, they’ll lose their trusted adviser and you’ll lose the case.

Having said that, there are a handful of very skilled collaborative practitioners who would see that as a challenge and be able to overcome all the seemingly insuperable obstacles. I am not one of that handful and you probably aren’t either.

(2) Have long positional chats with your client at the outset where you tell him or her what legal principals apply, the strength and weaknesses of their particular case, and precisely how you are going to make sure they get the best possible deal from their estranged partner.

The whole ethos behind collaborative law is that the couple have to make that journey together with guidance from their collaborating lawyers.

(3) Take no account of the identity and reputation of the lawyer who will be representing your client’s ex-partner. Assume automatically that they will approach the process in the same ethical, collaborative way that you do. One of the joys of practice as a collaborative lawyer is the unfamiliar but gratifying experience of discussing the legal issues of both clients’ cases with the other lawyer without needing to maintain your adversarial antennae. It allows you to open your mind to practical solutions that might otherwise have eluded you. And this really does require a degree of trust that will simply never be there with some practitioners. They have Trample the Weak, Hurdle the Dead stamped on their DNA so collaborate with them at your peril. Your client is entitled to rely on you for this kind of insider knowledge. Ask around if you haven’t heard of your opponent or, better still, try and influence the choice of the other lawyer so that it’s someone you respect and can work with.

(4) Ignore the fact that clients going through a painful and possibly frightening period in their lives don’t care about anything except keeping themselves and their families as safe as they can, both financially and emotionally. They have no interest in the process, only the outcome, so will be turned off if they hear too much about it.
So go on about the process in a thoroughly self-indulgent fashion, be inflexible about how to adapt it and make them feel patronised and alienated. That should derail it comprehensively.

Alternatively, think creatively about how to adapt it.

So what’s collaborative lite? It’s where you go through the practicalities of the process – roundtable meetings, no or minimal written communications, a collaborative approach – but without signing up to the collaborative agreement that means you have to step down if it fails. There are good arguments on both sides of that particular debate, but don’t bother to share them with your client.

Collaborative law hasn’t taken off in the way we all hoped it would back in the heady early days. It’s not cheap. It does require the solicitors to embrace the possibility that they’ll voluntarily hand over their client if the process fails and the big fees start to clock up (it’s true – we all make the most money from cases that fail to settle and go to trial). And it makes us step outside our comfort zone of settling down in our office bunkers and firing off threatening emails on a daily basis.

But it’s so worth it. Getting to know both sides. Watching them communicate in a loving, if sometimes wary, way. Helping them find a solution together while having a laugh every now and again, and deepening your professional relationship with your collaborative colleague. And you don’t need Claudia Winkleman to tell you and your collaborative partner that you’re a great team.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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