Collaborative approach can work
KATIE BEAVEN of solicitors firm Barker Gotelee explains the collaborative approach to resolving marital and other forms of legal disputeagreement.
KATIE BEAVEN of solicitors firm Barker Gotelee explains the collaborative approach to resolving marital and other forms of legal dispute
THE collaborative process is an alternative way of dealing with family disagreements, mainly used where couples have decided to divorce, although it can be useful when deciding upon the terms of a prenuptial or postnuptial agreement.
It is not a route that is suitable to all cases. However, for those who would like to deal with matters outside the court room and are focused on achieving an amicable and fair result, it would be the preferable way.
This is particularly so where there are young children or where more inventive and flexible solutions are required in relation to personal or business assets.
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Instead of using solicitor-to-solicitor correspondence and telephone calls, negotiations in relation to settlement under the collaborative approach are all conducted in a series of four-way meetings.
The four persons are made up of the husband and wife and their own solicitors. The fundamental aspect of the collaborative process is that both husband and wife and their lawyers have to sign a participation agreement.
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This means that if negotiations breakdown and court action is required, the solicitor can no longer act and the husband and wife would need to find alternative legal representation. This, therefore, focuses everyone's mind on achieving a settlement and husband and wife can be assured that their solicitor is committed to resolving the dispute.
As all the negotiation takes place in the meeting, it is sometimes necessary to include other professionals such as independent financial advisers, accountants or trustees.
Certain independent financial advisers and accountants have undertaken training in how to conduct themselves in these types of meetings.
In certain states in the United States the process also involves counsellors and family consultants to assist with the emotional side of matters.
The involvement of other professionals allows a husband and wife to become fully aware of the issues at hand and how they can be solved.
Whilst the court can only award a certain amount of remedies, the collaborative process can look beyond these and achieve a result that is flexible and tailor made to the husband and wife.
There does need to be complete trust between husband and wife when it comes to disclosing their financial positions that they will be open and transparent. They must also be willing to conduct themselves in the four-way meeting.
Whilst the collaborative process is not used in all cases, it is a useful process to bear in mind for those who wish to avoid the Court room battle and sort matters out in a heightened conciliatory fashion.