In Part 1, we considered the benefits of Collaborative Practice as an alternative to the traditional separation or divorce process. In Part II we answer some of the most frequently asked questions about Collaborative Practice.
Is it a legally binding process?
Just because you don’t have your day in court doesn’t mean Collaborative Practice cases are not legally binding. During the collaborative process, each person has their own lawyer in attendance to advise them of the legal implications of the issue/s being discussed. Once an agreement has been reached, a legal document is prepared and signed by both parties, which is legally binding.
How is it different to the traditional separation process?
Generally, when lawyers enter into negotiations with one another, it is done through the narrow lens of what the legal position is, i.e. what the letter of the law says. This may have little or no bearing on what is truly important and beneficial to the individual parties and the family unit as a whole. By sticking rigidly to the letter of the law, couples can become entrenched with opposing views on how to move forward making it almost impossible to find a solution.
If the parties eventually agree on a “middle ground”, generally it will favour one party over another. In Collaborative Practice, the negotiations are focused on the best interests of both parties and family members and finding solutions that meet the needs of all involved.
One major difference is that in traditional lawyer negotiations, the threat of court proceedings looms and can cloud discussions. In Collaborative Practice, this threat is removed. In traditional lawyer negotiations, the negotiations occur through letters between the lawyers, and if meetings are held, the discussions and negotiations are still in the context of adversarial positions and with the threat of court.
In Collaborative Practice, there are no lawyers’ letters. The work in the process occurs in meetings with both parties directly involved and the discussions centre around creating solutions that meet future interests and needs.
Is it more expensive than going to Court?
No. Collaborative Practice needn’t cost more than other dispute resolution options. Since both parties are intimately involved in the process every step of the way, they can keep track of the costs being incurred and make decisions about this. The cost of the process is usually agreed at the first collaborative meeting. If both parties provide information in a timely way and cooperate in the process, it will likely be cheaper and quicker than other dispute resolution processes.
Can I use the process to protect some of my assets from my partner?
No. Both parties need to commit to an agreement to provide full information in an open and transparent way. If you are trying to resolve relationship property issues or do a prenuptial agreement, the same law and the same requirement for full disclosure applies when you use Collaborative Practice as it would using other options.
If you reach agreement using Collaborative Practice and later discover the other party has not disclosed relevant information, then the situation is no different from any other negotiated agreement reached using other dispute resolution processes. If the information would have altered the outcome of the agreement, it would be open to you to seek to overturn the agreement. Collaborative Practice will not be suitable for you if you are hoping to avoid giving full disclosure of your finances or if you are wanting to “out manoeuvre” the other party.
Is Collaborative Practice right for my situation?
Collaborative Practice professionals are trained to assess whether your situation is suitable for Collaborative Practice. If he or she thinks it is not suitable, your professional will be able to advise you about other suitable options.