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Changing the face of family law

A new approach to family law is changing how clients interact with the legal system, writes Jennifer Hetherington.

A quiet revolution is sweeping through family law in Australia with more practitioners embracing the process of Collaborative Law, which offers divorcing couples a method of separating with dignity and divorcing without Court.

This is the cornerstone of the Collaborative process, anchored by a wish by participants to have control of the separation process.

A surprising number of practitioners and their clients are still in the dark as to how it works and its benefits, but this year marks 25 years of Collaborative Law’s existence and also the 10th anniversary of Queensland Collaborative Law.

A key difference between Collaborative Law (also called Collaborative Practice or Collaborative Divorce), and the conventional divorce process is a signed pledge by all parties to reach an agreement themselves rather than giving it over to a judge. All of the parties – clients and lawyers – commit to strive for an out-of-court resolution.

Divorce ends marriage but when children are involved, responsibilities remain. It’s up to parents to minimise the impact of their separation on their children. Collaborative Law helps minimise conflict while all parties embrace new lives. It is about untying the knot of a relationship, not hacking at the rope.

Some sections of the mainstream media portray the legal profession in a negative light so I think it’s crucial lawyers work to correct this stereotype and show that co-operation can stay strong throughout the divorce process.

So how does Collaborative Law differ from the traditional process? Under the traditional system a couple dividing property and going to Court if mediation doesn’t work, may have to wait several years for a final outcome.

In the Collaborative process, matters can be resolved within a few months. The key is a willingness by all parties – lawyers included – to find a mutually acceptable resolution, then work to achieve it.

The traditional process to distribute property starts with filing documents in the Federal Circuit Court, financial disclosure and then in most cases attending mediation. To get to that point is likely to cost the parties in excess of $10,000 each, plus the cost of formal valuations. From filing to mediation can take from 3-6 months, depending on availability of mediators and levels of co-operation between the parties and lawyers.

Formal mediation can sometimes require making major decisions on the day, usually without having the time to discuss things with professional advisors other than your lawyer. If you can’t reach an agreement on the day, it’s back to Federal Circuit Court.

While settlements on the steps of the court can happen, the client has already incurred expenses to reach this point, plus the stress and have an impact on their parenting relationship if there are children.

Likely, the trial date could be a year from when you first filed your Application in the Court. The more conflict between the parties, the longer the likely trial and so the courts, struggling with workloads and lack of funding, have to find time to hear the matter. More delays.

Even if parties go to trial, the judge will usually reserve their decision and it can be months or longer before that decision is delivered. Add more delays if an appeal is lodged. The traditional process of property distribution can consume two years or more of a client’s life.

For lawyers, Collaborative Practice does not mean losing fee-paying work or cutting corners. We still give comprehensive legal advice to our clients. We keep file notes and confirm advice in writing. The real difference is the focus on problem-solving and minimising conflict, rather than a traditional adversarial focus.

Other professionals such as accountants, financial advisers, psychologists and child specialists may be brought in as part of an interdisciplinary team when necessary to assist with financial and parenting issues, or other impediments preventing agreement. Unlike mediation, the lawyers don’t have one eye on the courtroom.

A first meeting between parties can be convened within a few days or weeks. Early decisions can be made for interim agreements for the needs of children, and urgent property and financial issues. Lawyers for both sides openly discuss options in the presence of all parties. Meetings can occur regularly, which reduces pressure on participants. They have time to properly consider the consequences.

If the parties wish it, a final agreement can be worked out in 3-6 months.

A fundamental difference between Collaborative Law and any other dispute resolution model is that if parties cannot reach an out-of-court settlement, the lawyers who have acted in the process cannot go to court with the client. So the lawyers are motivated towards helping clients achieve an out-of-court settlement that is a win-win for both parties.

Collaborative is not a soft option. It can entail robust discussion and complex negotiation. The process is also not confined to Family Law but can work in any matter where there is an ongoing relationship – in particular Family Provision Claims, Workplace disputes and in negotiating agreements.

The skills gained through Collaborative Law translate into all areas of practice. In addition it leads to better co-operation among lawyers – we discuss problems and options openly, because we are committed to the process and believe it is better for families.

Jennifer Hetherington is an accredited specialist in family law at Brisbane firm Hetherington Legal.

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