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Collaboration: The new solution for hard cases

Believe it or not, not all difficult divorces need to end up in Court. Over the last several years, the Family Law community in Australia has been introduced to a practice known as Collaboration. Collaboration is a process available to resolve family law matters and keep parties out of Court. Each client is represented by his or her lawyer through a series of meetings. It also allows the parties to structure more creative solutions which go beyond the scope of the Court. All information and advice is given openly in the round table meetings. This process also helps to address any power imbalance between the parties, so that one party is not bullied into a settlement.

What makes Collaboration unique from other methods of dispute resolution is the contract that is signed by each of the parties and their lawyers, committing not to go to Court. If the matter doesn’t settle, then the lawyers cannot represent the parties at Court. It means that instead of lawyers playing the traditional role of a litigator and being strategic in negotiations, their goal is to settle the dispute by agreement.

Collaboration also has its critics. Some view Collaboration as the “soft” approach and think that it is only suited to “easy” matters where everyone is getting along. I’ve often heard others say “this matter is too complicated, so it’s not suited to Collaboration”. In my view, it is these so called “hard” cases that can get the most benefit out of Collaboration.

So far all of my Collaboration matters have been “hard” cases. In some of my matters, the clients have had an extremely poor relationship and limited communication. In others, infidelity has inflamed the animosity between them. Often separating couples have zero trust in the other and will take steps simply to push each other’s buttons. In some cases, in addition to the hostility, there has been a complicated property structure, including companies, self managed superannuation funds and investment properties

Was reaching a settlement via Collaboration for these matters cheap? No. Was it easy? Definitely not. Did the parties improve their relationship by the end of the process? Sadly not in all cases. Was it better, cheaper, faster and more controlled than Court? Absolutely!

The Collaboration model offers parties a number of positive outcomes that they would have been unlikely to obtain from the Court process, including; spending less on legal fees, dealing with urgent issues, arranging meetings to suit their schedule, bringing in a neutral financial expert to advise both parties, discussing items of sentimental value, retaining their assets rather than resorting to sale or liquidation, controlling the timing of their settlement, discussing ways to maximise the value of their investments, each party and their lawyer having the chance to question the other party via the roundtable process, the parties raising matters that were important to them (but not necessarily a consideration under the Family Law Act), and being able to ventilate the day-to-day problems and reach solutions.

If the parties had chosen the Court process, they would have been faced with: the Court imposing timeframes on them, limited capacity of the Court to deal with urgent issues, the lawyers only able to question the other party directly at the end of the matter (in a hearing), being unable to raise matters considered irrelevant by the Court, the possibility of the Court ordering the sale of assets, possible delay in receiving a judgment and large expenditure on lawyers, barristers and experts.

Overall, in these cases, the Collaborative process was by no means easy, but it gave the parties the power to control their own settlement rather than rolling the dice with the Court.

I can’t guarantee that your divorce will be smooth sailing, but if you choose Collaboration for hard cases over Court, you will be much more likely to achieve an outcome that suits both of you.