"Collaboration" is defined by the Cambridge Dictionary as "the situation of two or more people working together to create or achieve the same thing."
What does this mean within the context of family law? Typically, family lawyers are involved in situations which are quite the opposite of 'collaborative'. At the point we become involved, the situation can often better be descried as 'combative'. By breaking down the definition of 'collaboration' it is possible to clearly see how such difficult situations can become collaborative within the family law context.
'Two or more people'
Solicitors in Scotland can only act for one member of a couple. If a person is looking for legal advice following a separation, then we meet with that individual to ingather information and tender advice. During that initial meeting, amongst other things, the different methods of dispute resolution are considered, and it sometimes becomes clear that the situation might be capable of resolution through a form of alternative dispute resolution called collaborative family law.
What sets this apart from more traditional solicitor negotiation is the following:
- All negotiations take place during meetings involving the separated couple and both of their solicitors. Ordinarily this means that there are, at all times, four people in the room during the negotiations;
- After each meeting, each person involved receives minutes of the meeting which also confirms agreed next steps/information to be ingathered and brought to the next meeting;
- It is based on a contract with all involved (including the solicitors) sign;
- It commits everyone to act with respect and integrity throughout the process; and,
- It prevents the couple from instructing the collaborative lawyers to raise a court action if the negotiation fails.
'Working together'
Whilst the lawyers remain advisers to their individual clients throughout the process, everyone around the table is working together to reach the desired outcomes of the separated couple. That is a very different situation to a litigation when the idea of working together can become less and less possible the longer the litigation continues. Unfortunately, due to it being a 'positions' based forum, with decisions not made by the couple but instead by a sheriff or judge, litigation can have effect of widening the gulf. In my experience, the collaborative process takes a couple who initially seem far apart, recently separated and emotionally raw, and gradually and carefully brings them back together, not in terms of them being a couple again, but of being united in their desire to live comfortable and confident, separate lives in a new landscape.
"To achieve the same thing"
The outcomes of a successful collaboration will depend on each individual set of circumstances and differ from couple to couple. The fact that the nature of the collaborative process means that it is possible to be very creative is a positive thing. Solutions can be proposed, discussed and agreed upon which would not necessarily be within the strict rules of legislation but which are better for both members of the separated couple and, most importantly, their children.
Couples with children who separate usually, and rightly, want to ensure that the children's best interests are at the forefront of the decision-making process. The ability of parents to maintain the ability to work together and communicate with each other post-separation can be an invaluable benefit to theirs and their children's futures.
Needless to say, I am an advocate for collaboration in family law and whilst there are many situations in which there are very legitimate reasons for the collaborative process not being appropriate, it should rarely be discounted as an option. The ability to negotiate together in a safe and structured way is powerful and can provide a firm foundation for separated couples as they move forward with their lives.
Contributor
Partner
