Collaborative Law is a new method of resolving issues that arise on marriage breakdown. It has been pioneered in North America, and is now g...

Collaborative Law is a new method of resolving issues that arise on marriage breakdown. It has been pioneered in North America, and is now gathering pace in Britain. While it is not suitable in every case, there is a growing need for people to have a more humane and less confrontational way of resolving issues about money and children on divorce. It is a more flexible approach, and potentially is less expensive than preparing for long court battles. How Does Collaborative Law Work? The process involves a series of meetings – called four-way meetings – where the parties themselves meet together with their solicitors. There is a minimum of correspondence, so there are no more of the inflammatory letters that raise the emotional temperature. Crucially, both clients and their lawyers sign a participation agreement. From the beginning, it is agreed that court proceedings will not be started unless previously agreed. Even then, this may only involve the divorce process after that has been discussed first, and ultimately sending a financial order to the court to have formal ratification of the settlement. The preparation for court proceedings, paying barristers to represent the parties, and all the documents required by a court can be avoided. Instead, the discussions are focused entirely on finding solutions to the problems which that family faces. If either party does decide to go to court, then both solicitors have to be dis-instructed. They are no longer able to act in the future. This is an essential part of underpinning the process. Both clients know that their solicitors are committed to resolving the issues, and share a transparency of purpose in doing so. When difficulties arise, there is much greater confidence therefore that the extra effort will be put into sorting out that problem rather than rushing off to court for adjudication on the point. This is the fundamental difference between normal round table meetings, conducted by solicitors in the conventional legal setting, as against the collaborative law process. When finances are discussed, there still has to be disclosure. It is still important to have all the factual details available before discussions take place about settlement, but because these are discussed face to face, there is much less likelihood of misunderstandings arising: explanations can be given immediately as to how money has been spent, and concerns about immediate issues can be addressed – be they about arrangements for children, banking arrangements or interim maintenance. Team Working Another feature of the process is the more open use of other professionals. These may be accountants, independent financial advisors or those who practise in the therapeutic field. The couple may decide to discuss their children’s needs as part of the process, or they may wish to take advice from a pensions expert about the implications of A Day or the implications of a pension sharing order. The collaborative law process very much encourages this: indeed, the other professionals can be invited in to the four-way meetings to help the process move forward. The informality of the process facilitates this, and training courses have been organised so that other professionals can participate more easily. This is in marked contrast to the court process, where the whole approach to getting valuation evidence has to be dealt in a particular way and within a rigorous timetable. The “one size fits all” approach does not suit every case, especially in more complicated cases involving businesses and trusts. Complex Cases One of the problems where family businesses or farming cases are involved is the whole question of valuation. Couples can very easily find that they have incurred £20,000 or £30,000 worth of professional fees before any discussion about settlement has taken place. This is because the courts require company shares in a business, or land assets in a farm, to be comprehensively valued at the outset. This approach may not suit every family. Here, the flexibility of the collaborative law process can be more beneficial. For example, if a couple are coming up to retirement age, it may not be worthwhile having a forensic accountant analyse the value of the shares, if the business is going to be sold in three or four years’ time anyway. Similarly, it may not be helpful in cases where the business – perhaps a farm – is intended to be passed on to the next generation: effectively, the business is there to produce income and then pass on to the couple’s children in the best possible shape. The involvement of the accountant or surveyor in those cases can potentially be far more valuable in the four-way meeting, discussing these issues informally, rather than preparing formal reports for the court. Not only might it be more cost effective, but it might be more suitable for the family’s requirements – more akin to the sort of tax planning exercise which might be carried out on any change to a family’s business arrangements. Cases Involving Trusts In recent years the courts have increasingly brought professional trustees into the litigation as third parties. This ensures that the courts can control the disclosure which is given by trustees, and their views can be ascertained as to whether or not trust assets can be brought directly or indirectly into account within the divorce process. This is an appalling prospect for many trustees. They may have to instruct counsel to represent them and to protect the interests of the beneficiaries which may be a wider class than merely the couple divorcing and their children. It is very easy in these circumstances for costs to be racked up, especially with a triangular round of correspondence. The collaborative law process has the potential to short circuit this legal involvement. The Trustees can be asked to take part in a four-way meeting, to explain how the trusts have operated in the past and what the current policy is, or to say what funds might be available in the future and in what circumstances. It is worth emphasising that all discussions in the collaborative law process are confidential: the trustees in such circumstances can therefore set out their views with complete confidence. The only exception relates to the financial disclosure which can be shown to a court should there be no alternative to proceedings down the line. Collaborative law is not for everybody. If somebody is determined to minimise or even to avoid the claims of his or her spouse, then litigation may well be the only option. The process can only move forward if the parties are genuinely committed to sorting things out by agreement. It may not be an easy process, and often the meetings can be tense. But the framework of the participation agreement provides the best prospect for resolving the problems in a non-confrontational way. For many it does represent a more civilised way of helping them and their family through a difficult period of transition. Rather than the polarising effect of the court process, with all its attendant expense and unpleasantness, the couple can work together in restructuring their financial lives – for their benefit and for the benefit of their children.