COLLABORATIVE LAW

WHEN SHOULD COLLABORATIVE LAW BE CONSIDERED?

o   The dispute is both interest and legal based

        Collaborative law attends to both the needs and interests of the client and the opposing party and to their respective legal obligations, duties and entitlements.  While legal interests are also focused on, Collaborative law is different from litigation as it is still a facilitative client-centred process.  This process is distinguished from negotiation and mediation which generally adopt a purely interest-based approach. 

o    In this firm, collaborative law should be selected as the preferred process for family disputes involving separating couples and children

o    There is vested interest in the relationship as there will be ongoing communication and/or contact

If the client wishes to maintain a good relationship with the opposing party, the likelihood of this can be maximised when using collaborative law because both the client and the opposing party is working as a team with a common goal of reaching a solution.

o   Expert advice is sought from a wide range of professions

o    A neutral third party is not wanted (which is different from mediation)

    ADVANTAGES

  o  Quick settlement

o  Cost effective (may be more costly than negotiation and mediation because the client must pay the professionals but is less costly than litigation)

o  Personalised settlement agreements

o Access to a wide range of professional/expert advice

      Breakdowns of familial relationships usually involve issues relating to the custody over the children, child support payments and the division of property and other assets of the marriage. By allowing for the incorporation of advice from a wide array of professionals, such as child psychologists to financial planners, clients can benefit from personalised settlement agreements which are far more elaborate than those provided by the courts or even those agreed to over a mediation. Collaborative law can also be used for commercial disputes. 

o  Conflict coaching can also be used (for more info on conflict coaching see under 'Mediation' tab)

o  Client retains control of the decision (unlike litigation) 

o  Holistic approach is enabled

   DISADVANTAGES

X  Disclosure of information depends on the good faith of the parties as there is no formal discovery process

X  Should it fail and the client wishes to resort to the court, the client will need to instruct another lawyer instead

 COSTS

o  Low when compared to litigation but may be costly if eminent professionals/experts are used to give advice

ADVICE TO LAWYERS

  When faced with a family dispute, collaborative law may be a preferred option after mediation. Collaborative law    can also be used for commercial disputes involving issues such as dispute relating to the valuation of commercial assets.