Collaborative law – what is it and how can it help your family during a pandemic?

Posted: 04/12/2020

Divorce is acknowledged to be one of the most challenging and painful events in life. Almost all couples often begin the process with a common goal; to resolve their divorce and agree arrangements for their children as amicably and cost effectively as possible. However, the challenges that couples face when dealing with the emotional and financial implications of divorce can often get in the way of that common goal. If one is not ready to proceed as quickly as the other, or if there is a misunderstanding about a financial issue, matters can escalate to expensive correspondence between lawyers which may, unintentionally, drive the couple further apart from their original goal, or even into court. This week is Good Divorce Week 2020. The aim of this initiative is to raise awareness of the options available to couples when going through divorce, including the non-court options such as mediation, arbitration or collaborative practice.

Worrying family law statistics emerging from the pandemic

We have all been working and living under new pressures during the global pandemic. This has created new challenges for separating couples who may now be unable to live separately and are confined to their homes more than they were previously. This has made child arrangements particularly difficult and has placed additional pressure on separated couples who may have been able to agree matters directly before the restrictions were introduced. There have been worrying statistics emerging to suggest that this pressure has led to an increase in marital breakdown. It is certainly the case that applications to the court involving the arrangements for children have increased during lockdown. There has been an alarming increase in proceeding involving domestic violence. The Family Court Statistics Quarterly (April to June 2020) show that Domestic Violence Protection Order applications have increased by 24% compared to the same quarter last year and the number of orders made has increased by 17% compared to the same quarter last year. Refuge - the sole provider of the National Domestic Abuse Helpline, said in their annual report that on average they receive 270 calls a day. However, during COVID-19 this has more than doubled and during lockdown it trebled. This demonstrates the increased volume of cases being dealt with in the family courts and highlights that lockdown may be increasing conflict for separated couples.

What is collaborative practice and how could it help you avoid conflict?

Many family solicitors who are Resolution members are trained as a “collaborative lawyer”. If your family solicitor has this qualification, they are likely to already adopt a constructive approach when dealing with your divorce. However, as a couple you can take this one step further by committing to the collaborative process at the outset of the case. It means that you both agree to keep disputes out of court, be open and transparent with each other throughout the process and to attend four-way meetings with your collaborative lawyer to resolve any issues (as opposed to exchanging solicitor’s correspondence). A key element is that you and your lawyers commit to the process from start to finish. The aim of this process is to minimise conflict and allow you to resolve issues together and in a non-confrontational way. The advantage of collaborative practice is that you (as a couple) control the agenda for every meeting and during those meetings you work with your lawyers to resolve any issues between you. You may decide to invite other professionals to your meetings, if additional support and advice is needed. Many couples include a family consultant or therapist to join the process. This allows the couple to deal with any emotional issues that could be preventing progress being made within the meetings. This approach also offers you and your lawyers a deeper undertaking of any sticking points that are preventing issues being resolved which then allows the discussions to move forward. A financial advisor may also attend the process to provide assistance to couples with complex issues such as tax implications, division of pensions or personal wealth planning. If there is a family business, it may be necessary to include an accountant to assist with valuing shares. During the joint meetings, which can take place via remote video link or in person with social distancing measures in place, you can discuss any matters that you wish to.

For some couples, the collaborative process is not appropriate and often in those cases court proceedings are unavoidable and sadly necessary. An example of this is when there is a lack of financial transparency from one party which means an order from the court is necessary to provide all of the information required to achieve a fair financial settlement. Another, is if one party feels intimidated or controlled by the other which may require protective orders being obtained or risk assessments to be undertaken regarding the arrangements for the children.

Court proceedings are often expensive and inefficient; it should be used as a last resort for couples. The pandemic has led to courts being overwhelmed with applications resulting in long delays between hearings and most hearings being dealt with by telephone. A telephone hearing is not always effective at resolving complex financial issues or sensitive arrangements for children. It throws couples into high conflict and can polarise your positions more than at the start of the dispute. Therefore for the majority of couples going through a separation, the collaborative process can offer a unique combination of legal, emotional and financial advice aimed and focused on couples retaining full control of the process and making decisions together for their family’s future. Divorce is never easy and can be the single most challenging event for a family to cope with but the collaborative process could help minimise conflict and promote communication skills for the future. For most couples the relationship doesn’t end on divorce - there is a need to continue to work together as parents throughout a child’s life.

How to find a collaborative lawyer

You can find out more about collaborative practice via Resolution’s website. Resolution is a national organisation of family lawyers who are committed to resolving disputes in an amicable and cost effective way. The Resolution website also has a “find a collaborative lawyer” search function which may help you find a lawyer in your area who is qualified to manage your case via this process.

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