Collaborative Law

This collaborative law initiative seems to be catching on, and I can certainly see why, if it does what it says on the tin. I’ve often met clients who have been disappointed with what mediation can offer them (I meet them at court once mediation has failed and they have fallen back on the court process). One of the reasons often cited by clients for the failure of mediation is that one or other of the parties has felt uncomfortable reaching an agreement when they haven’t had any legal advice (the other being that the other party has not entered into mediation in good faith and has tried to use it to bully the other into something unfair). This new approach seems to combine the best of mediation with the best of law. And leave out the adversarial part. Excellent news.

Has anyone tried this? Has it been positive?

4 thoughts on “Collaborative Law

  1. So what are we to call solicitors who have not taken this new approach? Adversarial solicitors? Who will admit to being adversarial?

    I have no personal experience of this approach but CAFCASS say that they are promoting it and that it can be successful. Mediation is still a better solution, but can never work effectively while the playing field remains so tilted and the parent with the upper hand has no incentive to make it work.

    Is it coincidence that collaborative law has emerged at a time when solicitors are losing legal aid funding?

  2. I think solicitors who do not become Collaborative Lawyers will be termed ‘traditional’ . . .

    Yes, it is a coincidence that this has ’emerged’ as legal aid funding disappears – Collaborative Law has been around for a while but is only slowly taking off!

    I am interested that you say ‘mediation is still a better solution’ – why? and what evidence do you have? I find that clients who attend mediation are often dissatisfied as they feel that the process can be very one-sided and can leave one party feeling very vulnerable andthat tehy have been pressurised into agreement without having had the chance to get proper advice – if they then seek advice and as a result are able to challenge the propsals they can be accused of being inconsistent – the Collab. process makes this less likely as both parties have their lawyers with them (and, jst as important, both lawyers can see when someone is half-hearted or doubtful)

    I have participated in several collaborative cases and what is very noticable is that people come out of the process much more satisfied with the outcome – one big plus is that it allows clients to feel that they are in control rather than being dictated to.

    i have also found that even in cases where we don’t get a solution and clients do go on to more traditional court proceedigns they tend to be positive about the collaborative process – it can be useful in clarifying priorities and expectations, so even where you can’t get to an agreed solution you can narrow the issues!

  3. It’s an opinion, Bagpuss, held without evidence! My position is as a father who’s been through the system and as an occasional McKenzie. As I said, mediation cannot work while the present system is so skewed in favour of the resident parent, and I am prepared to accept that collaborative law is the best option available in a seriously flawed system. Mediation as you describe it has obviously not been conducted appropriately, though in an adversarial process one party will presumably feel pressurised if the other has started proceedings. Even in a collaborative process one party must presumably initiate it, and oblige the other to be involved unwillingly in the process. My view is that the court is not the proper place in which to resolve these issues (it used to be the view of many lawyers, too, a century ago). A process which is cooperative rather than adversarial seems to be a better solution; collaborative law may be that process, though I am naturally deeply suspicious of anything involving lawyers.

  4. Collaborative law is not a cheap option, removes the Judge from the mix and replaces an impartial mediator with one’s own lawyer. If Collaborative law does not work then one needs to instruct a new lawyer if one needs to go to Court so it can be extremely expensive. It formalises the negotiation process which most cases go through prior to an application to the Court. Mediation frequently breaks down and is not suitable where the parties are not on a level footing. In summary, one needs a good lawyer who knows a good mediator who knows another good lawyer if Collaborative law fails!!

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