I trained as a Collaborative lawyer in May 2004. I was one of the first in the country to do so and one of just four from my area.
Until this point I had been a fairly traditional family lawyer. Regularly in court, sometimes four or five cases on the same day and getting huge satisfaction out of each win. I did not take offence at being called names by my clients’ exes including ‘Rottweiler’ and ‘super-bitch’. My training up until this point had been very legal. I knew all aspects of Family Law and prided myself on doing my own advocacy and putting into practice the tough negotiation skills I had been taught.
I think the timing was certainly right for me to change my ways. I was pregnant with my eldest daughter and had recently started NCT classes with six other couples, all soon-to-be parents. It was very clear looking round the room that we all wanted the very best for our children, and it did make me think how difficult it must be for parents who find themselves, for whatever reason, in the position of separating.
The Collaborative training was certainly challenging – six full days spread over a couple of months. We were asked whether what we were currently offering really met our clients’ needs and most of us conceded that the majority of time, clients come in and say that they want what is fair, rather than to take the other party to the cleaners or to exact revenge.
With the traditional court process, it is important to appreciate that there is no right answer to any given case. The judges are required to take into account a list of facts set out in S25 of the Matrimonial Causes Act 1973 which includes: contributions, needs, earning capacities and standard of living enjoyed during the marriage. Behaviour, to most people’s surprise, is only taken into account in exceptional circumstances, and ‘exceptional’ might as well be underlined with flashing lights round it!
There is no legal requirement as to how much emphasis the judges put on each fact and the result is that on training days, judges will admit that they all come up with slightly different solutions, none of which are wrong, and more importantly none of which would be appealable.
The subject and nature of Family Law encourages lawyers to get clients to position themselves at the upper end of what they think the bracket in terms of the solution might be, and then slowly work towards the middle. In my experience clients focus on the concessions that they have made rather than the concessions that their ex has made and end up feeling as if they have moved away from their starting point, which, in their eyes, was reasonable.
Collaborative Law is a process whereby the couple sit round a table with their lawyers and work together to come to a solution that is fair. Advice should not be given outside of the four-way meetings, and is generally given after the couple have discussed and come up with some options themselves. The lawyers will warn the clients if they feel that this settlement is moving towards a conclusion which would be unfair to one party or unlikely to be what a court would order. They are however able to take into account factors and preferences which a court might not. These include the availability of money from grandparents, and arrangements for children that are a lot more flexible than a court would normally feel appropriate.
In signing-up to resolve a case collaboratively, the parties both sign an agreement not to go to court. Although this does put some people off, in my experience it is an essential component to the process. If negotiations reach a difficult point, both lawyers will explain to the clients that if agreement cannot be reached they are looking at effectively starting over with new lawyers who would be able to take the case to court. If one person feels this option is better, then he or she serves notice on the other person and there is then a three-week period of reflection before court proceedings can be issued, save in the event of an emergency. I have never served or been served with a notice on my own collaborative cases, but I have seen people who have been considering leaving the process and successfully persuaded them to stay with it (thus losing a client myself) because I genuinely believe the alternative of court is worse in terms of both cost and emotional anxiety.
One of the things we were asked to consider in our collaborative training is how clients would feel about the process in years to come. The feedback I have had from clients is that the collaborative process is infinitely better. I met up with a client whom I had dealt with on a traditional basis over ten years ago, and he said he still would not go to his daughter’s wedding if his ex attended. I have never had a collaborative client say he/she is not willing to be in the same room as the ex, and in some cases we have even discussed how the costs of weddings in many years time will be shared.
I am also a Mediator and I encourage all my clients to consider either Collaborative Law or Mediation as an alternative to the court route. The difference between Collaborative Law and Mediation is that, with collaboration, advice will be given in the meetings when both parties have the benefit of their lawyer being present, which I know some find reassuring. The disadvantage is that you are effectively paying for two lawyers at each meeting, though most people will take advice from their own lawyer outside of the meetings when attending mediation.
In January 2011, just over six years after completing my Collaborative training, all the cases I took on (there is normally a post-Christmas rush with my area of work) were collaborative, and it made me realise how much my own reputation had changed in the area. I am a fortunate person in that I have always enjoyed my job but I have to say I do now prefer resolving cases without going to court, and seeing people come out of the collaborative process more equipped to co-parent going forward and without the resentment and anger that a court process can sometimes bring.
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