In my view there are many reasons why we lawyers should be getting serious about the collaborative process. The first is the over-stretched, over-burdened and under-resourced Court Service, which means that clients have to wait longer than ever for the resolution of their case. The second is the ever-more-limited resources of clients, and the difficulty of stretching assets to meet the family’s needs. The third is the evolution of the Age of Personalisation: everything from greetings cards to mugs is created to be ‘bespoke’ for the individual. The legal process need not be any different. After all, every family is different.
So here I intend to bust a few myths about the collaborative process in an effort to encourage more couples to try it, and more lawyers to train in it.
- The collaborative process adds nothing to the way I already work
It is true that many lawyers do their best to achieve a settlement for their clients. But the collaborative process adds so much to negotiations. Both the lawyers and the clients sign a Participation Agreement in which they commit themselves to the process and to avoiding the court process. It is this commitment to reaching their own agreement, and the removal of the threat of court proceedings, that explains why 83% of collaborative processes end in an agreement. It appears that, whilst the parties are free to leave the process and start court proceedings instead, the act of signing up to an alternative way forward is a powerful one.
What happens in the four-way meetings is also very different to an ordinary, adversarial negotiation. Collaborative lawyers are trained to work together with each other, and with both of the clients. They will focus on both clients’ needs, their experience of the process and how any settlement might work for the whole family. There is no concept of an ‘opponent’ or the ‘other side’. It is therefore very different to the tactical, advice-led process that lawyers are used to.
- It isn’t legally binding
This is also a myth. At the end of the collaborative process the clients can ask the lawyers to draw up a consent order for the court to approve. This allows their agreement to be ratified by a judge on paper, without the clients having to attend court, so that it has the force of a court order.
- Barristers don’t do it
Due to the flexibilities introduced by the Direct Access scheme, barristers can train as collaborative lawyers and will work with a client all of the way through the process. Holly Coates is the first barrister in Kent to do so. Either a client can approach Chambers directly, or (more commonly) solicitors will refer a client to the Direct Access scheme. In the unusual event that the collaborative process fails, Holly can direct the client to a firm of solicitors to look at next steps.
Holly is happy to talk through the collaborative process with clients or solicitors. She can be contacted through the clerks.