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A Short Guide to Collaborative Law & Practice

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The end of a marriage often brings emotional pain, financial uncertainties, changes in daily life, potential conflicts over shared assets, and concerns for children’s wellbeing. For those seeking to minimise distress and resolve the issues around a marriage breakup with minimum acrimony, collaborative law offers a unique set of benefits.

What is collaborative law?

Collaborative law, often referred to as collaborative practice, is a legal process designed to facilitate amicable resolutions in disputes, most commonly in family law matters like divorce. Instead of resorting to court litigation, parties in a collaborative law process each retain specially trained solicitors to help them negotiate an out-of-court settlement. Both parties and their solicitors sign an agreement that commits them to resolving the dispute without court intervention. This agreement typically stipulates that if the parties cannot reach a settlement and choose to litigate, the collaborative solicitors must withdraw from the case, and the parties must hire new legal representation.

Collaborative law provides an alternative to traditional adversarial legal processes, focusing on mutual respect and problem-solving. It offers a more private, personalised, and often less acrimonious way to navigate complex issues, aiming for solutions that preserve relationships and prioritise the best interests of all involved, particularly children and dependents.

What are the key differences between collaborative practice and litigation?

When taking a collaborative approach, you and your spouse agree not to go to court. This gives you and your spouse control of the process and outcome versus litigation, where a judge will decide your case. In contrast to the win-lose of a court scenario, where the judge’s decision is final, couples benefit from the input of a collaborative team that may include other specialists such as financial experts and child specialists. The input of these specialists helps spouses to work with each other, not against each other, towards mutually beneficial solutions for critical issues.

What types of specialists may be involved in a collaborative law divorce case?

Collaborative practice may not involve just yours and your spouse’s solicitor. In complex divorce cases, various specialists may be engaged to provide expertise and support in specific areas. Professionals often brought in to assist in collaborative practice include the following:

  • Financial experts – assisting in assessing and dividing assets, tax implications, and financial planning.
  • Child specialists – ensuring that your children’s needs are met with effective parenting plans.
  • Family therapists or counsellors – offering emotional support and strategies for effective communication.
  • Property professionals – providing guidance in terms of evaluating and selling shared property.
  • Business valuation experts – helping you to assess the value of family-owned businesses or professional practices.
  • Pension specialists – providing guidance in terms of understanding and dividing retirement assets.
  • Estate planning advisors – offering guidance on updating or creating estate plans post-agreement.

What is the difference between collaborative practice and mediation?

Collaborative practice and mediation are both alternative dispute resolution methods, but they have distinct approaches. In collaborative practice, each party retains their own specially trained solicitor to represent their interests, and all involved commit to resolving the dispute outside of court. The process may involve other professionals, as noted above. Mediation, on the other hand, employs a neutral third-party mediator who facilitates discussions between the parties to help them reach an agreement. The mediator does not take sides or make decisions; instead, they guide the conversation. While both methods prioritise amicable solutions, collaborative practice involves more direct representation, whereas mediation centres on facilitated negotiation.

Are there any situations where collaborative practice is not suitable?

Yes, collaborative practice is not an advisable method when there is a significant power imbalance between parties, a history of domestic violence, abuse, or intimidation. It may also be unsuitable when one party is not transparent, potentially hiding assets or information. If a party is not genuinely committed to a cooperative process and seeks to manipulate or dominate the other, the collaborative approach may not be effective. Additionally, if there’s an urgent need for court intervention, such as in cases of immediate danger or certain legal injunctions, collaborative practice is unlikely to provide a suitable pathway forward.

Why is collaborative practice good for the children in a marriage?

Collaborative practice can be particularly beneficial for children as traditional litigation can be adversarial and stressful, with children inadvertently caught in the crossfire of parental conflicts. In contrast, collaborative practice emphasises open communication, mutual respect, and problem-solving, which can lead to more amicable outcomes.

The process often involves child specialists who focus on the best interests of the child, providing insights into their needs and ensuring they are prioritised. This child-centric approach can result in parenting plans that reflect the genuine needs and wellbeing of the children.

Furthermore, by witnessing their parents working cooperatively to resolve disputes, children can learn valuable lessons about conflict resolution, compromise, and the importance of open communication. This can aid in their emotional adjustment during the transition period and can foster resilience.

Lastly, preserving a respectful and cooperative relationship between parents, which collaborative practice often facilitates, is crucial for the ongoing co-parenting relationship. Children benefit immensely when their parents can effectively co-parent without animosity, ensuring a stable and supportive environment post-separation.

What if the process doesn’t work?

The collaborative approach has a much higher than average success rate, however, there is no guarantee that it will work. If a resolution cannot be found, parties may need to transition to more traditional legal methods. This often means proceeding with litigation. New legal representatives will need to be appointed in this scenario, as per the agreement set out at the start of the process.

Is it an expensive process?

Typically, the collaborative process is more cost-effective than a protracted legal battle in court. The specialists involved usually charge a set hourly rate for their services, providing clarity that is often absent in traditional litigation. The number of hours you will need to employ your solicitor and any specialists will depend on your family’s specific circumstances.

Beyond monetary expenses, litigation can be emotionally taxing, fostering bitterness and distress for all involved. The collaborative method leverages a diverse team of experts, offering support and insights unavailable in standard court proceedings.

What are the key benefits of collaborative law summarised?

If you are dealing with a contested divorce, the collaborative approach offers a multitude of benefits including the following:

  • It helps you to maintain control – with both parties retaining control over the decision-making process and outcomes, rather than leaving them to a judge.
  • It’s cost-efficient – collaborative practice is often less expensive than prolonged litigation.
  • It helps to reduce conflict – you and your spouse will focus on cooperative problem-solving rather than adversarial confrontation.
  • It offers a holistic approach – by engaging various professionals, such as financial experts and child specialists, to address all aspects of a dispute.
  • It helps to preserve your relationships – by encouraging respectful communication.
  • It provides a faster path towards your final decree of divorce – settling out of court can help to bring your marriage to a close faster, enabling you to move on with your life.
  • It’s a future-focused method – it equips you with tools and frameworks for effective communication, potentially aiding in future interactions or disputes.

Are you struggling with a contested divorce?

If you have served divorce documents to your spouse and they have indicated that they wish to contest the terms, you may be wondering what next steps you should take. Alternatively, you may have had documents served to you that you wish to contest. In either circumstance, McCarthy + Co’s family law team has a wealth of experience in dealing with the legal complexities of divorce. Arrange a consultation with us today to discuss the options available to you.

Clíodhna O'Regan

Born and raised in Clonakilty, Clíodhna O’Regan is an Associate Solicitor specialising in conveyancing, with a particular interest in commercial conveyancing. She also specialises in family law. She has been an integral part of McCarthy + Co. for six years since she returned West in January 2017, after gaining experience as a conveyancing and probate solicitor in Cork city.

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