Time for collaborative law to come of age

Twenty years ago, collaborative family practice arrived in the UK from across the Atlantic and was poised to take the family law sector in England and Wales by storm. Some may say that the storm has passed, but for those of us still making use of the collaborative process and the opportunities it presents to our clients, it feels very ‘now’. The court backlog and the 29 April changes to the Family Procedure Rules (FPR) to encourage the use of non-court dispute resolution (including collaborative law) make this particularly timely. 
 

What is collaborative law?

The collaborative model sees parties contracting with their lawyers (and each other) to have no contested proceedings for the duration of the retainer. Upon that stable ‘no court’ foundation, the couple bring in professionals to provide higher-level and more open dialogue. This enables them to consider how the needs of the family can be best addressed and how a fair settlement and arrangements can be achieved.

The key benefits for couples include:

• the support of partisan lawyers, but trained to operate in a constructive way;
• the possibility of counselling input and planning around children’s needs; and
• the option to involve financial professionals to work out future finances.

Time for fresh thinking?

Too many families seem to be offered the standard ‘old rope’ of only legal input. This process starts with an exploration but quickly migrates into a court application, which then inches its way forward to a point where – generally – a deal is struck. Often this will be at the Financial Dispute Resolution hearing, the likely success of which paradoxically operates as a deadener to deals being reached earlier.

If, however, the family law community could start to approach cases collaboratively at the outset we might move the dial for the good of the parties and the Family Court.

Collaborative law helps ensure better engagement of the parties – it is a more benign process when, typically, at least one party is reluctant to go to court.

In our experience, full and frank financial disclosure – a key part of the divorce process – can usually be provided voluntarily and away from court (albeit with the threat of court if not done fully, frankly and clearly), with the lawyers providing a framework or parameters around that for the likely financial outcome.

Collaborative practice enables lawyers to concentrate on the aspect of their role which should be the focus and adds the real value to clients – that framing of the likely outcome. In all processes including collaborative, that is what helps the client to know their rights and obligations as they work out their solutions.

Then, hopefully, the process generates a conclusion with an agreed order to be submitted to the court in a timeframe that does not involve enormous delay and sickening costs.

The end game of divorce has the potential to be achieved in far healthier ways and without the expense that usually surrounds it, but ‘the system’ militates against that. The recently retired High Court judge Mr Justice Mostyn summed up the current norm pretty well: ‘It seems to be an iron law of ancillary relief proceedings that the final difference between the parties is approximately equal to the costs that they have spent.’

Why now?

The Part 3 reforms to the FPR aim to raise the hurdles to accessing court as the default option. In summary they:

• narrow the doorways of the exemptions to completing the mediation information and assessment meeting which is required in most private family cases before a court application; 
• require parties to update the court, by filing open statements of their position on and attempts to make use of non-court process;
• impose duties on the court to scrutinise compliance with the rules and to ensure that opportunities to settle have not been overlooked;
• provide the court with powers to impose adjournments of hearings to encourage the take-up of non-court solutions; and
• bring centre stage the prospect of costs orders for breach of these rules.

For too many litigants, the new regime may mean additional steps and costs as they seek to access the court as usual. For the luckier few who are instructing the right professionals, these reforms will buttress the value of better information and, by agreement away from court, allow the court to focus on addressing outlier cases, for example of high conflict and control.

We urge the family law community to see the new FPR changes as a reason to revisit the benefits of collaborative law and for more among us to train up. This will ensure more family lawyers learn those essential skills of listening, non-positional negotiation and the benefits of a multi-disciplinary approach, with a recognition of the damaging effects of ongoing parental conflict for children which can be caused by drawn-out legal battles.

This may finally be the moment for collaborative law to come of age. It places the power for decision-making back with the couple who must live this future, the shape of which is mapped out in the work we do.

This article was first published in The Law Society Gazette, 3 May 2024.

about the author

Charlotte is a senior consultant and former head of the Family team at Kingsley Napley from 2013 - 2024. She specialises in all aspects of family law, particularly international issues, both in relation to finance and children. Charlotte has a reputation for cross border jurisdiction issues, particularly European and Relocation cases, and for acting for unmarried parents in Schedule 1 (financial provision) cases.  She is also an accredited mediator and collaborative lawyer, working with high profile and high net worth couples keen to resolve their separation in private.