Collaborative Professionals WA
Frequently Asked Questions
What happens in a collaborative Family Law matter?
You and former partner will each retain your own family lawyer to advise you throughout the process.
Your lawyer will discuss with you in your introductory meeting whether your circumstances are suitable for the collaborative law process. If this process is appropriate for you, your lawyer will then prepare with you for a number of face to face meetings with your former partner and their lawyer.
At the first of these face to face meetings, you, your former partner and the lawyers (and other professionals if you engage them) all sign a Participation Agreement setting out the ground rules for the collaborative process. The agreement sets out that:
- if you or your former partner commence court proceedings, then both lawyers will be disqualified from acting further;
- you, your former partner and the lawyers will act in good faith, be open and honest in dealing with one another; and
- you, your former partner and the lawyers respect the fact that different views will need to be expressed to achieve a settlement acceptable to you both.
The majority of the negotiations will take place in the face to face meetings. Correspondence between lawyers is kept to a minimum.
As you are present throughout the meetings, you and your former partner are able to retain control of the process, the scope for misunderstandings is reduced and you will be assisted in communicating with each other in an inclusive way which is particularly future focused. This is important if you are parenting children or running a business together. All the meetings are minuted and agendas for future meetings are agreed.
During the collaborative process, you and your former partner will be able to call on the skills of other specialist advisers, if appropriate, such as accountants or valuers to assist in financial matters, or child counsellors to assist with any issues arising in relation to the care of your children.
Once a settlement is reached, the lawyers will draw up a settlement agreement, which will usually be submitted to the court for approval and made into a consent order.
How does the collaborative process differ from mediation?
Mediation involves a neutral third party who facilitates the negotiations between you and your partner, but who does not give legal advice. In the collaborative process, you and your former partner have your own lawyers who work with both of you in the meetings. Your lawyer will advise and support you throughout the process. You will also hear the advice your partner is getting throughout the negotiations.
What about confidentiality?
All professionals involved in the collaborative process are bound by the professional conduct rules of their respective professional organisations. There is a strict duty of client confidentiality. Any discussions or records of those discussions are legally privileged, and are conducted on a “without prejudice” basis. This means that they cannot be used in court. If the collaborative process fails, you and your former partner may not use any of the information or documentation generated during the collaborative process, other than that related to financial disclosure.
This confidentiality will be overridden where any of the professionals involved has a professional obligation to make a report to a relevant authority, for example, if a child is considered to be at risk.
What happens if one of the participants does not give a full and frank financial disclosure?
This can happen, as it occasionally does in mediation or court litigation. In the collaborative process, if one party withholds or misrepresents information intentionally, or acts in bad faith, under the terms of the Participation Agreement, his or her lawyer must withdraw from acting any further. Likewise, it is open to you to withdraw from the collaborative process if your lawyer considers that your partner is not keeping to the terms of the Agreement.
If you discover that your former partner has failed to disclose relevant information after a settlement agreement has been reached through the collaborative process and if the outcome of the settlement would have been different had the information been available, it is open to you to seek to overturn the agreement and set aside any court orders made.
Why Can’t We Go To Court?
In a collaborative process, you and your former partner agree not to go to court and cannot use the threat of court as a means of coercing the other to agree. This assists you both to conduct the negotiations in good faith and to consider the interests of each other honestly.
If the collaborative process breaks down and court intervention is urgently needed (for example, to preserve an asset) then you and your former partner can go to court by terminating the Participation Agreement and appointing new lawyers.
How much will it cost?
As with other legal processes, different lawyers have different charging rates. Your lawyer will explain to you the basis of his or her cost agreement with you.
As long as you and your former partner act in good faith, provide the information requested of you within the agreed time frame and cooperate in the process, the collaborative practice will almost certainly be quicker and cheaper than a dispute resolved by a court hearing.
You and your former partner may wish to discuss at the first meeting how the costs of the collaborative process are to be met. However, unless there is some agreement to the contrary, you and your former partner will each be responsible for your own lawyer's costs and will be invoiced in accordance with your own agreement with your lawyer.
How can we get a collaborative case started?
It is essential that you and your former partner both have family lawyers trained in the collaborative process.
If you think that the collaborative process may be an attractive and appropriate way for you to resolve your dispute, speak to your own lawyer about the process or contact one of the collaborative professionals listed here.