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Collaborative Law | Elizabeth McGuinness & Co Solicitors

What is Collaborative Law?

Collaborative Law is a new way of resolving family law matters including divorce, separation and parenting disputes. The aim is to find a fair and equitable agreement for the couple through discussion and negotiations. The success and effectiveness of the system depends on the honesty, co-operation and integrity of the participants. It is geared towards the future and ongoing wellbeing of the family as a whole and protecting the children from the negative affects of the parent’s disputes.


How does it work?

You and your partner instruct your own trained collaborative lawyer to advise and assist in negotiating an agreement on all issues. Both sides sign a binding agreement called a ‘Participation Agreement’ where you agree at an early stage to make full and voluntary disclosure of all documents and information that relate to the issues. The process depends on the co-operation of all of the participants and the full and frank disclosure of information. The agreement provides for the termination of the process should any participant become aware that the other side is being less than fully honest. Negotiations take place in “four-way” settlement meetings that both the parties and their lawyers attend. The lawyers guide and advise the parties towards a reasonable resolution. However, all of the decisions are made by the parties.

If either party decides to proceed to court then the collaborative process ends. The lawyer’s fees are paid and both collaborative lawyers are disqualified from the process and can no longer act for either party in the context of contested family law proceedings.


What is the difference between Collaborative Law and Mediation?

In mediation, no legal advice is given and the mediator facilitates the parties reaching their own decisions. This can be difficult if the participants are not of equal bargaining strengths. When there is an agreement, the mediator prepares a draft of the settlement terms for review and approval by you and your lawyers.

In collaboration, both sides have legal advice built in at all times during the process. It is the lawyer’s role to encourage and assist his/her client to be reasonable in the process to ensure that the process stays positive and productive.


How is Collaborative Law different from the traditional Court process?

Collaborative Law differs from the traditional Court process in the following ways:-

  • Everyone participates in an open, honest exchange of information and neither side takes advantage of the miscalculations or mistakes of the other.
  • Both parties try to protect their children from the negative affects of their disputes.
  • Occasions arise when outside expertise is required, for example, accountants, auctioneers, pension actuaries, psychologists and other professionals. These experts are agreed in advance by the parties and jointly instructed to advise the process, which reduces the costs and promotes accord among the parties.
  • Lawyers endeavour to guide the process to settlement or withdraw if they fail to reach settlement as opposed to adversarial lawyers who remain involved whether a case settles or not.
  • Parties sign a binding agreement called a ‘Participation Agreement’ where they agree at all an early stage to make full and voluntary disclosure of all documents and information that relate to the issues.

Is every lawyer trained in collaborative law?

Not every lawyer is trained in collaborative law and it is likely to be more difficult to engage in the process if your partner’s lawyer is not so trained.


How long does the collaborative process take?

In general, it takes between three to seven “four-way” meetings to resolve all of the issues. These  meetings can be spaced with long intervals between each meeting or close together depending on your particular needs. Once issues are agreed, the lawyers complete the paperwork, for example, the Deed of Separation or the Terms of Consent to be ruled in the context of a Judicial Separation or a Divorce.


Is collaborative law for everybody?

Collaborative practice is not for everybody. There are cases which simply cannot be dealt with in this manner and will need to proceed with litigation.