The length of time it takes to obtain a divorce is different in every case, as everyone’s circumstances are different. Collaborative family law does however focus on problem solving and open communication which makes it a direct and efficient process. In addition there is no waiting for court appointments.
3. Is a divorce through the collaborative family law process different to a conventional one?
The conventional divorce process can result in the parties viewing each other as adversaries in the court process. This is often extremely stressful and very expensive in terms of legal costs. In the collaborative family law process the parties chose to opt out of the court process and have meetings round the table with their lawyers (and other specialists) to reach solutions that meet their respective interests and those of any children.
4. What is the difference between collaborative law and mediation?
In mediation the mediator is prohibited from giving either of you legal advice and cannot assist you in advocating your position. A mediator is neutral.
The mediator is there to facilitate you and your partner and has a duty to advise you each to take separate legal advice, either during the process or after.
Any settlement discussed during mediation is only binding once each of you have had the opportunity of taking separate legal advice and have transferred the agreement into a separate consent order of the court. The mediator cannot prepare the court documents for you, or finalise the process. Lawyers are rarely present during the mediation sessions and their advice may be given too late to assist in the process.
In collaborative family law, you each have your own lawyer throughout the process advising you and advocating on your behalf. If you or your partner lack negotiation skills or financial understanding, or feel vulnerable when in the sole presence of the other party, collaborative family law could be preferable to mediation.
Provided agreement is reached your collaborative lawyer can act for you in the divorce and prepare the court papers to obtain the consent order.
Mediators may still have a role in the collaborative family law process if you and your partner wish to consult a mediator regarding a specific issue, such as the arrangements for your children.
5. What kind of information and documents do I have to provide in collaborative family law negotiations?
You and your partner must sign at the start of the process a binding agreement to provide full and frank disclosure of all documents and information The same duty of disclosure exists whatever model you choose to resolve your difficulties.
6. What happens if my partner/spouse does not give full and frank financial disclosure or undertake the collaborative family law process in good faith?
This can of course happen as it does in mediation and in conventional legal representation. Under the terms of the collaborative agreement, the lawyer must withdraw from acting from their client if he/she has withheld or misrepresented information intentionally or is participating in the process in bad faith. Likewise, it is open to your collaborative family lawyer to advise you to withdraw from the process if they do not consider that your partner (or indeed their lawyer) is keeping to the terms of the agreement.
If you consider that your partner is unlikely to be honest during the collaborative process, is likely to lie about his or her financial affairs, then collaborative family law is unlikely to be a good choice for you.
7. Why can't you go to court if the process doesn't work but each of you agree to retain your existing lawyers?
The reason that collaborative family law has been successful and developed (in other countries) is the fact that the lawyers are disqualified from acting for the clients should collaboration fail. The disqualification agreement means that all the parties, including the lawyers and clients, are attempting to achieve settlement without threatening or being subject to the threat of court proceedings when things become difficult.
You are collaborating without the background of potential court litigation, and lawyers are encouraged to work together in assisting you to reach settlement.
By agreeing at the outset not to go to court, you, your partner and the lawyers can be encouraged to reach creative settlements, having of course regard to the legal position but having you and your family's particular interests at the forefront of any settlement proposals.