What is collaborative practice?
Collaborative practice is a new way of resolving family law matters including
- and parenting disputes.
There are a number of core elements to it that make it different from other ways of resolving family disputes. They include:
- A commitment by the parties in dispute and their lawyers that they will not go to court or threaten to go to court unless it is to formally approve an agreement.
- A commitment by the parties in dispute to be honest and open with each other.
- Face to face negotiations between the parties in dispute and their lawyers.
- A commitment by the parties in dispute and their lawyers to try and reach an agreement that is fair to everyone.
How does it work?
Both you and your partner work with specially trained collaborative lawyers.
You each receive legal advice and guidance, and together with each of your lawyers, discuss and resolve issues through face to face meetings. If the process breaks down, neither of the lawyers can act for you in any contested court proceedings. If you are in receipt of legal aid, the Legal Aid Board will arrange alternative legal representation for you in the unlikely event that the process does break down.
How is the threat of court action during negotiations avoided?
Everyone signs an agreement which does not allow your collaborative lawyers to represent you at court if the collaborative process breaks down.
What are the advantages of negotiating outside the court process?
- Provided everyone enters the process in good faith, the process is faster and less acrimonious than court proceedings;
- You can set your own agenda according to what matters most to you and your family;
- You will have a greater degree of control over the process, including the pace at which you negotiate;
- You won’t risk key decisions being made by a complete stranger, namely a judge;
- The process is likely to be far less stressful than court proceedings, which are widely regarded as being one of the most stressful events that a person can encounter. With collaborative law there should be no surprises and each party should know what to expect; and
- If the process is successful you will have an agreement with your partner which both of you will have had responsibility for, and which, hopefully, will be a more effective basis than a court imposed solution, for maintaining a relationship with your partner for the benefitparticularly of any children.
Can the collaborative law approach be used in every divorce or separation ?
There are a small number of situations in which collaborative law is not suitable. Your lawyer will advise you as to whether your case is suitable.
Is every lawyer trained in collaborative law?
No. Not every lawyer is trained in collaborative law and it is likely to be more difficult to engage in the process if your partner’s lawyer is not so trained.
- You can get details of those lawyers who have been trained in the process at your local law centre.
- As long as your case is suitable for the collaborative law approach, your lawyer will make every effort to assist you in resolving issues without the necessity of issuing court proceedings.
Is it likely to be successful?
- The process depends on both parties making known all of their assets so that negotiations can be honest and open.
- Experience has shown that if there is honesty and openness there is a strong probability that the process will work.
- It is likely that the agreement that you come away with will be a far more effective and workable agreement, than any arrangements that might be put in place by a court.
Legal Aid Board,
Tel: (066) 947 1000
Fax: (066) 947 1035
Locall No. 1890 615 2000
The above is provided for information purposes only. It does not purport to be either a statement of the law or legal advice.