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By Elizabeth Gallagher – Solicitor Samuel Phillips Law firm

According to Government statistics 1 in 3 marriages end in divorce. Of these a good proportion are acrimonious bitter divorces where neither husband nor wife feel positive about the outcome. Regardless of the level of acrimony divorce ranks high in the scale of stressful life events and is the reason why there is now a new approach to reduce stress and bitterness.

Collaborative Law – what is it?

This involves separating spouses and working together with their respective legal advisers to reach a dignified and fair settlement without going to court. It is not meant to be a unified approach as it is clear it will not work for every couple, but from small beginnings, this approach is beginning to catch on.

To facilitate the collaborative law process solicitors undertake an intensive 3 day training programme. Lawyers who’ve undertaken the specific training are exclusively permitted to act on collaborative cases.

The principles involved

Before embarking on this route, both parties need to be committed to trying to make it work. One of the first steps is for both parties to draft a mission or anchor statement. This may be for example that they want to ensure that throughout the process the end result must be what is best from the children’s point of view. If there are times when it looks like the process will break down, the parties are encouraged to refer back to the initial mission statement.

This statement is usually read out at the first four way meeting that takes place with the husband and wife and their respective lawyers. The key difference to the more traditional approach is that there is a team working together to achieve the parties respective mission statements. This will involve the lawyer working in a different way to the more traditional approach where they are frequently trying to score points against their opponent. It will therefore only work if there is a great deal of trust and a good working relationship between the lawyers, who to a large extent act as facilitators as well as advisors to the husband and wife and help them reach their own negotiated settlement.

The fundamental approach is that the whole process is very open and transparent and if a party seeks to hide information or mislead the other party in some way, the system will simply not work. The idea is that the husband and wife take ownership of the process and hopefully, ultimately, a settlement is reached that will be much more workable if it has been agreed following direct input from both parties.

How does it work in practice?

If a client opts for this approach, one of the first steps is that the lawyers will meet to ensure that they agree the case is suitable to progress down this route. The process then takes the format of four way meetings (husband and wife and their respective lawyers) interspersed with meetings between the lawyers and the lawyers and their respective clients.

At the first meeting, the parties will be required to sign a “participation agreement” which states that if the process breaks down and either party wants to go down the more traditional route of going to court, the parties will have to instruct different lawyers. If an agreement is reached however, the agreement will still be submitted to the court for a binding court Order to be made.

Moreover, in addition to the team of the parties and their lawyers working together, it is possible to use other professionals to assist such as counsellors, independent financial advisors etc.

Will it catch on?

It is clear that this way of resolving disputes arising in a marriage breakdown situation will not work in every case. It is however an option to be considered but is dependent upon the parties having the will to make it work. Moreover, it is not just financial issues that can be considered, any other issues that arise in a marriage breakdown situation can be considered such as arrangements for the children.

Collaborative law is also being used in other countries and already lawyers in the UK are being asked to sort out international problems collaboratively. In addition, it is possible to look at other issues that lawyers may be asked to advise upon in a collaborative format such as pre-nuptial agreements and cohabitation agreements.