What is collaborative divorce and does it really work?

What is Collaborative Divorce?

Collaborative Divorce is a method whereby both parties, along with their respective solicitors, agree to resolve their disputes amicably and without going to court. It’s an approach that encourages open communication and negotiation, with the aim of reaching a settlement that satisfies both parties and benefits the family as a whole.

As a form of alternative dispute resolution, collaborative divorce has actually been practised in the UK for more than 20 years and today is used by separating couples worldwide. Collaborative lawyers are specially trained by ‘Resolution’, an organisation of justice professionals who work with families and individuals to resolve issues in a constructive way.

How does collaborative divorce work?

Like many ‘traditional’ divorces, each party appoints their own specially-trained solicitor who provides independent legal advice and representation. The divorce application can be made by a sole or joint applicant. If necessary, a family law solicitor can assist you with your initial application.

An agreement is made that commits each party to the collaborative divorce process. The solicitors must sign an agreement too. They include the promise of:

• commitment to the process
• full and open disclosure
• avoidance of litigation
• arrangements for the engagement of other professionals to advise on specialist matters if needed

Rules about solicitors and representation

One of the fundamental rules of collaborative divorce is that if the process fails, the solicitors involved must withdraw from the case and the parties must seek new solicitors for any court proceedings. This is designed to encourage both parties to commit fully and work towards a resolution without the impending possibility of litigation.

Collaborative Law Sessions

Collaborative law usually involves four-way meetings that take place face-to-face, with both parties and their solicitors attending. Other experts may be invited to advise on specific matters. The agendas and timescales for the process are also organised collaboratively at a pace that suits all parties.

There can be any number of sessions, but it commonly takes between two and six meetings for couples to agree the terms of their separation in a mutually acceptable way. The agreement is then formalised by the court.

What are the advantages of collaborative divorce?

Amicable resolutions

There are many couples who – regardless of how or why their marriage has ended – wish to conclude their relationship amicably and with respect. Some couples still hold a sense of deep care and affection for one another and may feel saddened by the end of their relationship. In this scenario, collaborative divorce offers a path that recognises these emotions and prioritises the wellbeing of everyone involved.

If your relationship has been under strain for some time, a collaborative divorce can improve communication by promoting respect and cooperation as you move through each step of the process. This can help you to build a more positive relationship for the future, which is particularly valuable if you have children together.

Maintaining harmonious and cooperative relations is generally always advisable for co-parenting (where possible and appropriate) and will enhance the wellbeing of your children. It’s not always easy, but for parents who feel equally motivated to put their children first, a collaborative divorce can build the foundation for a very positive parenting partnership.

Control over the outcome

When couples cannot agree while divorcing and the dispute ends up in court proceedings, the outcome can be imposed upon them by the judge. Collaborative divorce allows you to have control over the terms of your separation, without anything being imposed on either party. As with any divorce, there may still be a need for compromise on both sides, but the collaborative approach can often lead to more satisfactory outcomes for everyone.

Privacy

The collaborative process is private and confidential, unlike court proceedings which are typically more public. Meetings are usually restricted to just the parties and their solicitors. This can protect the couple’s privacy and make the process feel more comfortable for everyone.

Cost efficiency

The collaborative approach can be more cost-effective as the lawyers will help you to reach agreement and avoid the courts, which incur additional expenses. Meetings focus on negotiation and fair settlement, which ultimately can reduce the overall time and expense involved.

Each party must still hire a solicitor to represent them, but collaboration can be a swifter process as communication is often more effective. This is helpful for those who are concerned about the costs of divorce. For all divorcing couples, there’s still a mandatory 20-week cooling-off period, which is the window of time for negotiation and agreements to be made.

Empowering

A key advantage of collaborative divorce is the ability to decide upon the terms of your separation in a very personal way. All parties should feel heard. You can work through all sorts of matters that a court may not necessarily consider, such as adult children or the arrangements for your family pets.

Collaborative divorce is particularly beneficial if you share a business or need to divide complex assets. It allows you to work together, sometimes with the help of independent financial experts, to reach a mutually agreeable split. Crucially, this can enable a business to continue operating smoothly during your divorce, which will help preserve its value. It also ensures a fair division of assets, which can be crucial for the future success and financial stability of both parties.

The disadvantages of collaborative divorce

Requires cooperation

The success of a collaborative divorce depends upon both of you being willing to cooperate. If either of you are unable to compromise or engage in negotiations in good faith, the process will fail and you will then need to find someone new to advise and represent you.

Potential imbalance of power

Collaborative divorce is not a one-size-fits-all solution. You may already have some idea about how well each of you might engage in the process. It’s unlikely to work if only one of you is willing to commit fully, or if you’ve had a high-conflict relationship in the past.

It is NOT a suitable method for anyone who has been involved in domestic abuse, including coercive and controlling behaviour. If there’s been an imbalance of power in your relationship, one person may feel pressured to agree to terms that are not in their best interest. In these cases, consult a family lawyer who can advise you on more suitable options.

No guarantee of success

If the collaborative process fails, the couple will have to find new solicitors, as the original collaborative solicitors cannot represent them in court. This would lead to a delay and further expense.

How does collaborative divorce differ from mediation?

While both collaborative divorce and mediation aim to resolve disputes amicably and out of court, mediation has some key differences:

• It involves three people – the two parties and a neutral family law solicitor.
• The mediator does not represent either party and cannot provide legal advice to them.
• Participants usually need their own solicitors outside of the mediation process to advise them.

The key difference is the ‘one team’ approach of collaborative divorce and the confidence given because of each solicitor being present to help and advise during the negotiations. This provides reassurance to both parties that any agreement reached is fair and reasonable.

Collaborative divorce: who are the ideal candidates?

✔ Cooperative couples

Can you communicate openly and are you both willing to negotiate in good faith?

✔ Committed parents

Do you have children together and are you committed to maintaining a positive co-parenting relationship to minimise the impact of divorce on your children?

✔ People with mutual respect

Do you still have a level of mutual respect and want to part ways amicably?

✔ Business/asset owners

Do you have complex assets or business arrangements that need to be untangled sensitively and efficiently?

What makes a good collaborative lawyer?

A good collaborative lawyer will play a crucial role in the success of your divorce. Here are some of the essential qualities and accreditations to look out for:

✔ Members of Resolution who have undertaken the collaborative practitioner training.

✔ Empathy and understanding – a good collaborative lawyer needs to be empathetic and understand the emotional complexities of divorce.

✔ Good team players, prepared to cooperate and fight for fairness all round.

✔ Strong negotiation skills so that they will be capable of facilitating constructive discussions and finding mutually acceptable solutions.

✔ Commitment to the process, demonstrating that they are fully committed to the principles of collaborative law and genuinely believe in its benefits.

Conclusion

Read more about how the collaborative process can help to ease the pain of family breakdown. There is a good step-by-step guide on the gov.uk website, as well as a useful video “Collaborative Law in Practice”.

We’ve seen firsthand how – as an alternative to traditional divorce – collaborative divorce offers benefits to those who are willing to work together. While it might not be suitable for everyone, it can provide you with a more constructive way to handle the end of your marriage. For families who want to change shape and move forward amicably, collaborative divorce offers a compassionate and effective solution.

If you’re considering divorce and want to find out if collaborative law is the right approach for you, our experienced team of collaborative practitioners are here to help.

At K J Smith Solicitors, we’re committed to helping you on your journey to a kinder, more conciliatory divorce. We empower you to make joint decisions through a team-based approach, fostering cooperation that will help to safeguard your future relationship. Arrange a FREE family law consultation with us to find out how we can support you today.