Collaborative Family Law

Collaborative family law is a structured, non-court process through which separated couples work towards an agreed resolution with the assistance of their own lawyers. Both parties to the relationship agree that they will not go to Court and that they will not threaten to go to Court. Family Lawyers who work in this collaborative space must be specifically trained to do so, because they need to be able to advise from a completely different mindset - not an adversarial and confrontational mindset but a positive and collaborative one.

Each party retains a collaboratively trained lawyer who provides independent legal advice and supports them during a series of joint negotiations. Depending on the issues involved, the process may also include jointly engaged professionals such as financial advisers, accountants, psychologists, child specialists or family counsellors, if the parties want to bring them in for advice.

At the beginning of the process, the parties and their lawyers sign a Participation Agreement. This records their commitment to negotiate in good faith, exchange relevant information transparently and attempt to resolve the dispute without asking a court to decide the issues. It ordinarily also provides that the collaborative lawyers cannot represent the parties in any subsequent contested court proceedings, if the collaborative process ends without a final agreement.

Any settlement reached must then be documented appropriately, such as through consent orders or, where suitable, a binding financial agreement.

Both collaborative law and mediation can help parties resolve family law disputes without having a court impose an outcome, but the processes are very different.

In mediation, an independent third-party mediator facilitates negotiations with the lawyers and the parties and helps them explore possible solutions. The mediator must remain neutral and does not represent either party or provide them with individual legal advice. Parties may obtain legal advice separately and, depending on the type of mediation, their lawyers may attend.

In collaborative law, each party has their own collaboratively trained lawyer involved throughout the process. The parties and their lawyers participate in a series of joint meetings to identify concerns, exchange information and develop possible solutions. Other neutral professionals may also be involved where appropriate.

Collaborative law may suit people who want continuous independent legal advice while maintaining a cooperative, constructive and non-court approach.

Collaborative family law allows the parties to retain control over the decisions affecting their family instead of asking a court to impose an outcome. This can create greater flexibility and allow the parties to develop arrangements tailored to their children, finances and individual circumstances.

Other potential benefits include:

• direct and respectful communication
• independent legal advice for each party
• transparent exchange of relevant information
• access to neutral financial or family professionals where required
• greater privacy than contested court proceedings
• flexible and practical settlement options
• reduced conflict, which may assist parties who need to continue co-parenting.

The collaborative process may also be more efficient and less expensive than litigation. However, its duration and cost depend on the complexity of the issues, the number of professionals involved and the willingness of both parties to participate constructively. A particular cost or outcome cannot be guaranteed. The collaborative process of resolution will almost always be much faster than applying for a court-imposed judicial outcome.

Although the process is designed to be private, the precise confidentiality and use of information will depend on the Participation Agreement and applicable law. It should not be assumed that every communication has the same statutory protections that may apply to accredited family dispute resolution.

No. Collaborative law works best when both parties are willing and able to negotiate in good faith, provide complete and accurate disclosure, listen to each other’s concerns and work towards an agreed outcome. It is especially important that both parties have the right mindset and psychological attitude to bring to the process.

It can be used to address parenting arrangements, property settlement, spousal maintenance and other financial issues arising from separation.

However, careful assessment is required where there are concerns about family violence, coercive or controlling behaviour, personal safety, significant power imbalances, dishonesty, non-disclosure or a party’s ability to negotiate freely. In some cases, safeguards may make a collaborative process possible; in others, a different dispute-resolution process or court intervention may be more appropriate.

We assess each person’s individual circumstances before recommending collaborative law and will advise whether it appears to be a safe and suitable option.

If the parties cannot reach an agreement, they may need to consider another dispute-resolution process or court proceedings.

Under the Participation Agreement, the collaborative lawyers must withdraw if either party asks a court to determine the dispute. Both parties would then need to instruct new lawyers for the contested proceedings. This requirement is a central feature of collaborative practice and encourages everyone involved to remain committed to meaningful settlement negotiations.

Information and documents exchanged during the collaborative process may need to be dealt with in accordance with the Participation Agreement and applicable legal obligations. Parties should not assume that every document or communication will automatically be confidential, privileged or inadmissible in later proceedings.

If the process ends, the parties may consider negotiation through new lawyers, mediation, arbitration for eligible financial disputes or an application to the Court. The most appropriate next step will depend on the issues, urgency and any safety concerns.

Our expertly trained lawyers can help you to design the right dispute resolution process tailored to suit your family dynamics and needs.