Posted on 26th June 2019 at 10:23
Jon Armstrong blogs here about the many advantages of collaborative law.
I recently decided to treat myself to a new tie, so I paid a visit to a large and well-known department store in Colchester. I walked to the back of the store where the menswear department is situated and discovered that they had moved the suits and ties. I then wondered around the ground floor of the store looking for the suits and ties for a while before giving up and asking a shop assistant where there were now kept.
To my astonishment, I was informed that they no longer stocked ties. In fact, this department store had decided that it no longer going to sell men’s formal wear.
I confess that I was flabbergasted. I obviously appreciate that tie wearing is somewhat rarer than it used to be, but it’s not that unusual to wear a tie, is it? I was left feeling somewhat like a Jacobean gentleman visiting his tailor and being told that they don’t sell ruffs any more, but would I like to try a nice curly wig instead?
The legal profession is one of the last bastions of tie wearing. Many law firms have embraced tielessness in the office, and I admit that when I am not seeing clients, I generally dress down. However, if you’re a litigator and have to appear in court, you have to wear a tie. If you don’t, you run the risk that the judge objects. Not so long ago, an improperly dressed advocate might encounter a judge who would rumble “I cannot hear you”, leading inexperienced advocates to raise their voices without realising that it was really the judge’s curmudgeonly way of pointing out that the advocate was improperly dressed (no wig or waistcoat or an insufficiently stripy suit) and that therefore his case could not be heard.
The apparent death of the tie may eventually result in the court realising that there is no reason why an advocate cannot appear before it in an open neck shirt, but for the time being there is at least one other form of dispute resolution which does not require a lawyer to wrap a metre long piece of silk around his neck. Ties are not compulsory in the collaborative process.
Since the creation of the single Family Court a few years ago, budget cuts, the withdrawal of legal aid in most family cases and a failure to invest in modern IT have led to the pace at which court cases proceed now being glacial. People going through divorce proceedings now find that anything involving the court now takes far longer than it used to. This can be deeply frustrating time when people wish to make significant progress in relation to starting afresh following a divorce. It’s particularly bad where divorcing couples need to get the court to resolve a dispute and make an application to the court for a financial order.
The appalling delay is one of many reasons why couples who are divorcing should consider using the collaborative process rather than litigating through the court.
Collaborative lawyers have been trained to conduct negotiations in a constructive and nonconfrontational way. Where divorcing couples decide to use collaborative solicitors, they and their solicitors all enter into a Participation Agreement which commits them to using this collaborative approach. The collaborative process involves negotiations with both sides and their lawyers work together to find a solution which is the best possible outcome for both parties and for their children. They do this by negotiating in a series of “four-way meetings” where lawyers and their clients sit together in a room around a table and discuss the issues and options for settlement.
This differs from so-called round table negotiations because of the manner in which the discussions are conducted. There is none of the point scoring involved in traditional negotiations. The parties and their lawyers do not engage in positional negotiations, but instead work in a cooperative and collaborative way together. The atmosphere is relatively informal. The parties and the lawyers all address each other using their first names. I have even been known to take off my tie on occasions.
Most importantly, the participation agreement contains a commitment by both parties and their lawyers that they will not issue a contested application at the court to resolve matters. This means that if the collaborative process is unsuccessful and one or both parties decides that an application to the court will need to take place so that the dispute can be resolved, both the husband and wife must find new solicitors to act for them. The participation agreement bars their existing collaborative lawyers from acting for them in relation to contested court proceedings.
There are two reasons for this; firstly, it gives everyone, including the lawyers a stake in making the process work, and secondly it deters the parties from flouncing out of negotiations without a very good reason. This commitment to not using the court is a fundamentally important part of the collaborative process. Not everybody appreciates this; for example, when searching for a suitable piece of imagery to purchase to accompany this blog, I found one picture of a book entitled “Collaborative Law” on a desk next to a gavel. Not only do English judges not use gavels, the whole point of the collaborative processes is that you don’t use the court at all so that piece of imagery was regrettably completely ill-conceived.
In most cases, the parties can reach an agreement with the help of the lawyers in these meetings. The collaborative lawyers will then seek a financial consent order from the court reflecting the agreement so that the parties then have a legally binding deal.
Collaborative negotiations take place outside court proceedings and therefore, they can progress at a speed which is suitable for the parties. This may be much faster or, where appropriate, much slower than court proceedings. Using alternatives to court such as collaborative process or other alternatives such as mediation, arbitration or negotiation are the obvious solution to the problem of court delays.
There are many other advantages to the collaborative process:
• it tends to be considerably cheaper than court proceedings.
• it allows a couple to keep control over the outcome rather than putting in the hands of the judge.
• It allows a couple to come up with more imaginative solutions to their disputes rather than the limited range of options available to the court.
• It enables a couple to work together in the best interests of both themselves and their children.
• It provides a couple with an opportunity to discuss issues which are important to them, but which might be considered trivial by the court and unworthy of court time, such as how to divide their personal belongings or arrangements for pets.
The collaborative process enables couples who divorce to work together in an amicable manner with their solicitors to reach an agreement and to divorce with dignity.
Not all solicitors however are able to offer the collaborative process. Collaborative lawyers are trained by Resolution and many family solicitors have not undertaken the training. Therefore, regrettably they often do not suggest using the collaborative process to their clients. There are also cases where the collaborative process is not suitable; for example, in cases involving domestic abuse, or where a party has drug, alcohol or mental health problems.
Some court involvement is still necessary. Firstly, if you are getting divorced, the divorce proceedings have to take place in a court. This would not normally involve any court hearings as undefended divorce proceedings are largely a paper exercise, and the process is soon to become more administrative rather than judicial in nature with the introduction of no-fault divorce in the near future.
Secondly, once an agreement has been reached, it is necessary for the lawyers to draft the financial order and a brief financial statement reflecting the agreement between the parties which is then lodged with the court to be approved by the district judge. This is a vitally important step, but unfortunately the moment the court takes between one and three months, sometimes longer to approve financial orders. This can cause problems with implementation of agreements, for example where a mortgage offer is likely to expire or the end of the tax year is looming.
However, one of the beauties of the collaborative process is that you can agree to proceed without waiting for the court order to be made. It is not unusual to implement parts of an agreement before an order can be obtained from the court because of how slow the court can be. This is risky in many cases as it runs the risk that an agreement breaks down after it has been implemented, but before a binding order has been made, leading to the possibility of further claims. However, in the collaborative process, the level of trust between the parties should be much higher than in other cases and therefore it is easier to justify running the risk.
And of course, another advantage of the collaborative process is that obtaining an order in this way does not require me to put on a tie.
Jon Armstrong is a Resolution collaborative lawyer at Armstrong Family Law and a member of Collaborative Lawyers Colchester.
26 June 2019
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