Publish date

18 September 2020

Collaborative law v Adversarial law

Collaborative law is one of the processes that a couple can use to resolve matters after separation, including in relation to finances and children. The collaborative process itself requires each party to appoint a collaborative lawyer and then for all four participants to sign up to an agreement to try and resolve matters in a constructive way and without recourse to court proceedings. The lawyers’ commitment includes an agreement not to represent their client, if one of the separating parties commences court proceedings. If that were to happen, both parties would have to instruct another firm of solicitors to represent them.

A series of four way meetings then takes place with the couple and each of their lawyers being present throughout. This enables options to be fully explored with the benefit of legal advice. In complex cases people may prefer collaboration to mediation because the advice is immediately available, although this is also an option, albeit rarely exercised, if lawyers attend mediation.

If however, either or both parties adopt an adversarial approach by commencing court proceedings, the decision making is ultimately delegated to a judge, if an agreement is not reached before the final hearing takes place.

Collaborative law is becoming increasingly popular with those wanting to avoid the substantial cost, the acrimony and the increasingly significant delay of court proceedings. If a couple are communicating well and share priorities, for example keeping the children in private school or not selling a home, negotiations within that process can ensure that these priorities have a much greater chance of being met.

By contrast, with the adversarial court approach, a judge may decide that something is simply not affordable and therefore, he or she may make a decision that means that something which the parties wanted is not ordered.

Collaborative law is normally significantly cheaper than the adversarial approach, especially if a final hearing takes place, because barristers are rarely involved in the collaborative process whereas they are almost always instructed for hearings. Ultimately where both parties wish to leave their estate to their children, it may not make sense to effectively give money to lawyers to pursue a court application, which could instead form part of the children’s inheritance.

The Collaborative process is also normally quicker because the couple have control over the timetable. They alone decide when the meetings take place, whereas with court proceedings one is dependent on when the court lists a hearing and even then, it is possible to turn up for a hearing only to find that a judge is not available, having by then incurred significant costs by instructing counsel and most likely a solicitor to represent them. As a result of the unsatisfactory state of the crumbling court system some parties are now opting for arbitration instead, which is written about in more detail separately. It is an alternative for those who wish to adopt an adversarial approach but who wish to retain some control of the process.

Obviously being able to resolve matters without the court’s involvement is dependent on both parties being willing to cooperate and enter the collaborative process in good faith. If one party is not willing to communicate and/or is entrenched in a position that is not reasonable or if they refuse to co-operate with for example, financial disclosure being exchanged, then ultimately there is no choice but to litigate and commence court proceedings. There is no point going through the motions of attending mediation or collaborative meetings if one knows that these are not going to achieve a settlement, unless one is acting in bad faith in order, for example, to delay matters or in an attempt to avoid producing full and frank financial disclosure.

Ultimately, there are various ways of resolving cases and it is a question of each party finding the right approach for them and one which will lead hopefully, to a resolution that is acceptable to them without unnecessary delay and expense. One should discuss the various options with a solicitor before making a decision.

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