Process
Suitable circumstances
Benefits
Case study
Comment
Separating couples have the option of choosing collaborative practice over solicitor negotiation or the Family Court process. This article is part of a series on divorce and separation in England and Wales.(1)
Collaborative practice involves both parties and their respective solicitors coming together in a series of face-to-face meetings to work out an agreement regarding matters of finance and/or children.
At the start of the process, the parties sign a participation agreement, which commits them to resolving matters without going to court. This means that if the process breaks down, the parties' solicitors cannot represent them in any future court proceedings. Each party also has the chance to set out their objectives in an anchor statement. If an agreement is reached, it can be embodied in a consent order or parenting plan.
Non-legal professionals, such as financial advisors, accountants and family therapists, are often brought in to assist during the process.
Separating couples often choose collaborative practice over solicitor negotiations (for further details, please see "Divorce and separation: solicitor negotiations") as it gives them a greater say in the process and more control over it. The disqualification clause in the participation agreement creates a safe space for discussions without the threat of court.
The focus of the process is on the whole family and the future, rather than the past. It can be especially useful in resolving arrangements for children, where couples wish to co-parent.
Collaborative practice is particularly suited to separating couples:
- who wish to create an agreement on their own terms, as opposed to a third party imposing a decision on them;
- who feel comfortable discussing issues directly with each other, albeit with the support of their solicitors;
- where there is a significant degree of trust, such as when each party is confident that the other has fully disclosed their finances (or will do so); and
- in complex cases, where technical legal (or non-legal) advice is required, as this can be provided by the parties' solicitors (and other professionals) during the process and can be shared with everyone.
If there are discrete issues that the parties wish to discuss without solicitors, such as issues relating to child arrangements, they could discuss these through mediation. Alternatively, in higher conflict cases, a mediator can even be brought into the collaborative process in a five-way meeting. If discrete issues cannot be resolved, they may be referred to arbitration.(2)
Collaborative practice has several benefits:
- privacy – the venue can be far more discreet than a busy court building;
- favourable terms – both parties are directly involved in the discussions while also being supported by their solicitor. As a result, they often feel empowered and more positive moving forward;
- improved communication – the collaborative process can enable clients to improve their communication with one another, which can be particularly beneficial if they need to continue working together as co-parents;
- suitable pace – as the process is not driven by a court timetable, it can move at the pace of the parties' needs and priorities; and
- open advice – because collaborative practice is all about the sharing of advice and non-positional discussions, there is less posturing, and common ground tends to be identified more quickly.
A couple had separated due to the husband's affair but had maintained a civil relationship in order to co-parent effectively. There were a number of complex issues to resolve relating to the valuation of the husband's business in order to settle their financial arrangements. The wife was also still dealing with the emotional aspects of the husband's affair.
While the couple wanted to find a solution to avoid court, they wished to have the support of their solicitors in discussions. Collaborative practice enabled the couple to agree a financial settlement after five meetings with their solicitors. During the process, an accountant and a family therapist attended some of the meetings to assist.
In order for the collaborative process to be successful, both parties need to be committed to working out a solution away from court and prepared to invest the time and energy into doing so, as the meetings can be laborious and time-consuming.
When the collaborative process succeeds (which the vast majority do), separating couples are typically highly satisfied with the outcome, as they have played a central role in achieving a resolution, while maintaining amicable relations with the other party.
For further information on this topic please contact Joanne Edwards, Rosie Schumm, Simon Blain or Matthew Brunsdon Tully at Forsters LLP by telephone (+44 20 7863 8333) or email ([email protected], [email protected], [email protected] or [email protected]). The Forsters LLP website can be accessed at www.forsters.co.uk.
Endnotes
(1) For the first and second articles in the series, please see "Divorce and separation: Family Court process" and "Divorce and separation: solicitor negotiations".
(2) Arbitration involves the separating couple appointing a family arbitrator – a practising barrister, solicitor or retired judge – to make a decision on matters of finance and/or children.