Separation does not always need to result in lengthy or adversarial court proceedings. Collaborative practice (also referred to as Collaborative Divorce or Collaborative Law) provides separating couples with a structured, respectful and future-focused way to resolve family law issues arising from their separation or divorce, without contested litigation.
What is collaborative practice?
Collaborative practice is a voluntary dispute resolution process where each person is supported by their own collaboratively trained lawyer. You and your former partner, together with your respective collaboratively trained lawyers, participate in a series of planned and structured meetings to identify the issues requiring resolution, exchange relevant information and develop and consider options for resolving your family law matter.
Depending on the needs of your family, other professionals may also be involved where their expertise would assist the collaborative process. These professionals may include financial professionals, child specialists or coaches. Together, the collaborative team works with you and your former partner to explore practical solutions that takes into account the needs and circumstances of your family.
Collaborative practice can assist separating couples to reach agreement regarding a range of family law issues, including:
- parenting arrangements;
- property and financial settlements;
- spousal maintenance;
- child support; and
- other issues arising from separation.
Collaborative practice may also provide an opportunity to reach interim agreements about arrangements for children, finances or other practical matters while you and your former partner work towards a final resolution.
Participation agreement
A defining feature of collaborative practice is that the parties and their respective collaborative lawyers enter into a written participation agreement at the commencement of the collaborative process.
The participation agreement sets out the framework for the collaborative process and records important commitments made by the participants. These may include the parties’ commitment to negotiate in good faith, communicate openly and respectfully, provide relevant information and make a genuine effort to resolve their matter.
The process encourages everyone involved to focus on problem solving and achieving practical outcomes for their family, rather than maintaining fixed positions or preparing for litigation.
Another important feature of the participation agreement is that the collaborative lawyers agree that they will not represent the parties in contested court proceedings if the collaborative process ends without resolving the dispute. If the collaborative process does not result in an agreement and contested court proceedings become necessary, each party will need to engage a new lawyer. This is an important feature of the collaborative model and supports the parties and their lawyers in maintaining a focus on negotiation and resolution rather than preparing for litigation.
How does the collaborative process work?
Arnold Hills can assess your matter and advise whether collaborative practice may be appropriate for your circumstances.
If collaborative practice is suitable and you and your former partner agree to participate in the process, you, your former partner and your respective lawyers will enter into a participation agreement and arrange a series of structured meetings to work through the issues requiring resolution.
In some matters, you and your former partner may agree to involve other professionals to assist with particular issues, such as financial matters, parenting arrangements, communication challenges or other areas where specialist input may assist.
Where other professionals are involved, the collaborative team can provide additional support and specialist input to help you and your former partner explore options and work towards agreed outcomes that reflect the circumstances and needs of your family.
Your collaboratively trained lawyer will provide you with legal advice throughout the process and will work with you to prepare for each meeting. Your lawyer and your former partner’s lawyer will also work cooperatively before and during the collaborative meetings to identify and clarify the issues requiring resolution, facilitate the exchange of relevant information, and help you and your former partner explore options for resolving the matters in dispute.
When agreement is reached, we can assist you with preparing the appropriate documents to record and formalise the agreement. Depending on the issues resolved, this may be achieved by consent orders, parenting plan or financial agreement.
Benefits of collaborative practice
Where collaborative practice is suitable, it may provide several benefits, including:
- greater involvement in shaping the outcome;
- a more respectful and constructive process;
- support from collaboratively trained lawyers throughout the process;
- the ability to involve other professionals to assist with financial, parenting or other matters;
- private discussions conducted in accordance with the participation agreement;
- the potential to reduce the time, cost and stress associated with contested litigation; and
- a process that may support better communication and future co-parenting arrangements after separation.
Is collaborative practice right for you?
Collaborative practice may be suitable where both parties:
- want to resolve their family law matter outside of court;
- are willing to negotiate respectfully and in good faith;
- are prepared to be open and transparent in providing relevant information;
- want to have greater involvement in shaping the outcome; and
- are open to considering solutions that address the interests of both parties, and where relevant, their children.
You do not need to agree on every issue before commencing collaborative practice. The purpose of the process is to provide a structured environment where issues can be discussed and solutions explored. However, both parties must be willing to participate genuinely and constructively.
Collaborative practice may not be appropriate in some circumstances, including where urgent court intervention is required, there are concerns about family violence or safety, or issues involving control, intimidation or a significant power imbalance that cannot be appropriately managed within the collaborative process.
Arnold Hills can carefully assess your circumstances and advise whether collaborative practice may be appropriate for your family law matter.
Mediation
Collaborative practice and mediation are both designed to help parties resolve family law disputes outside of court, but they operate differently.
Mediation often takes place in a single scheduled session. During mediation, an independent mediator assists the parties to identify the issues in dispute and to explore possible options for resolution. The mediator does not act for either party, does not provide either party with independent legal advice or impose a decision on the parties. Depending on the type of mediation, each party may also have their own lawyer involved to provide legal advice and support them throughout the process.
Mediation may also be conducted by shuttle, where the parties participate from separate rooms or separate virtual spaces and the mediator communicates with each party separately to assist the parties with exploring options for resolution. Where lawyers are involved, the mediator may communicate with each party and their lawyer separately, and each lawyer can advise and support their respective client throughout the process.
The most appropriate dispute resolution process will depend on your circumstances, the issues requiring resolution and whether each party is able to participate safely and effectively. Arnold Hills can advise you about whether collaborative practice, mediation or another dispute resolution process may be appropriate for your family law matter.
Speak with Arnold Hills, collaboratively trained family lawyers in the Hills District
Sara Arnold is a collaboratively trained family lawyer who can guide you through each stage of the collaborative practice process or assist you during lawyer-assisted mediation.
If you are separating and want to explore respectful, constructive and practical ways to resolve your family law matter outside of court, Arnold Hills can provide clear and tailored advice and guidance to help you move forward towards resolution with confidence.
We can advise you about whether collaborative practice, mediation or another dispute resolution process is appropriate for your circumstances and help you prepare for collaborative meetings or lawyer assisted mediation. We can also help you identify and understand the issues requiring resolution, the options available for addressing them and the information that may need to be obtained or exchanged before meaningful negotiations can take place.
Throughout the process, we can provide legal advice about parenting arrangements, property settlement, financial matters, spousal maintenance and child support, as well as your disclosure obligations. Where appropriate, we can work alongside other professionals involved in the collaborative process and help you explore and evaluate different settlement options as further information becomes available.
We can advise and support you throughout negotiations and, once an agreement is reached, prepare the appropriate documents to record and, where appropriate, legally formalise the agreement.
Arnold Hills assists clients throughout the Hills District, including Castle Hill, Norwest and Rouse Hill, as well as clients across Sydney.
Contact us to arrange a confidential consultation about collaborative practice, mediation or your family law matter.
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