Ian Walker Collaborative Family LawyerWhat is Collaborative Family Law?

In short Collaborative family law is an excellent process to resolve the issues arising out of separation and divorce.

The features of collaborative family law

the features of collaborative family law are that each of the couple instructs a specially trained collaborative family lawyer.

Each of the couple and their collaborative family lawyer will then sign a contract called the participation agreement. This is a commitment to resolve the issues that need to be resolved in connection with their separation and divorce (normally finance issues and child arrangement issues) through a series of face-to-face meetings.

The couple and their collaborative family lawyer make a commitment in the participation agreement not to embark upon adversarial and divisive court proceedings.

 

Family lawyer meeting

The collaborative family participation agreement

The collaborative family law contract – the participation agreement – contains a clause which disqualifies the lawyers from acting for the couple if either or both decide to abandon the collaborative family law process. The disqualification clause means that if collaborative family law fails, then the couple will need to find new lawyers to represent them in a court process.

It is very rare for the disqualification clause to be invoked because the vast majority of collaborative family law cases achieve an amicable outcome. (There is also a small cheat in that if there was an issue which was contentious and which could not be resolved through discussion and sensible negotiation – then it is possible for everyone to instruct a private judge called an arbitrator to resolve that issue – which enables the collaborative process to conclude amicably. There is more on our website about arbitration – but couples choosing to instruct an arbitrator make a legally binding decision on a discrete issue is very different making an application and forcing the other through a court process).

 

The other features of collaborative family law

The other features are:

  • the collaborative agreement confirms that the couple will negotiate in good faith and in a transparent and open way
  • the issues are often resolved in face-to-face meetings (called a four-way meeting) with both the parties and
  • their solicitors (collaborative family lawyers) are present (this means that each of the couple are well supported)
  • letter writing will generally be kept to a minimum
  • the collaborative family law process involves a  holistic approach where the couple and their lawyers may also work with other professionals who are also collaboratively trained eg a financial neutral adviser, in a five-way meeting.

 

Cases that are suitable for the collaborative family law processchild with family cardboard cutout

In a case suitable for the collaborative family law process the couple will:

  • understand the general process options through litigation, mediation and arbitration
  • positively choose the collaborative family law process by making an informed decision
  • not be too positional
  • understand that they need to keep an open mind when engaging in collaborative work and not talk only of their rights but rather of the family’s interests
  • often talk about wanting to stay in touch/have a good relationship with their former partner and also indicate that they would like to choose an option whereby they are divorcing in a respectful way and with dignity
  • have a measure of goodwill to their former partner and be able to envisage sitting in a room together discussing issues
  • understand that they will be an integral part of the client-driven process
  • understand the disciplinary and holistic nature of the process

 

The role of the collaborative family lawyer

A collaborative family lawyer must be collaboratively trained and will:

  • discuss not only the factual history and legal situation with the client but also try to understand more of their client’s motivation and what works for them
  • assist their client in preparing an agenda and managing it
  • understand that there will be times when there may be conflict in the room and be able to manage it
  • assist the parties in negotiations—the parties will often do much of the negotiation themselves
  • organise/audit disclosure and give legal advice both inside and outside the four-way meetings
  • prepare documentation including the final consent order with the appropriate recital indicating that the case has been dealt with on a collaborative basis

 

Collaborative family lawyers in Devon and SomersetFiona Griffin - Divorce and Finance Specialist

We are very fortunate to have two experienced collaborative family lawyers in Ian Walker and Fiona Griffin.

In fact it was Ian Walker was responsible for arranging for Resolution (who oversee the collaborative family law process in England and Wales) to run the original collaborative family law training in 2006 – when the original core of Devon and Somerset collaborative family lawyers were trained.

We are happy to work with Collaborative family lawyers in Devon and Somerset and elsewhere. The numbers of collaborative family lawyers in Devon and Somerset are quite small. This means that most of us know each other well and have trust and confidence in working with each other.

Having a good working relationship between Collaborative Family Lawyers in Devon and Somerset is important. If we don’t have confidence that we can work with the other collaborative family lawyer, then our client is not going to have confidence that collaborative family law will work for them.

 

Choosing Collaborative Family Law

It is fundamentally important that the choice of a client to enter a collaborative family law process is an informed one.

Ian Walker says:

I am an experienced family mediator (having trained in 1996) family solicitor (qualifying in 1992) and collaborative family lawyer (since 2006) and I am very familiar with the pros and cons of court based and non-court based dispute resolution.

Going to court and saying hurtful things about the other parent with both spending thousands of pounds rarely helped anyone get on better with each other. Where a couple have children – successful talking dispute resolution is much better for the family – not only because parents are better able to maintain an ongoing relationship for the benefit of their children – but also because they are acting as role models in showing their children that they are able to put their own emotions to one side and reach sensible solutions in a sensible way. (Talking solutions are also better for couples without children – because discussing and reaching agreements is in the greater scheme of things a much less stressful way of ending one chapter in life before moving onto the next, with less baggage in tow).

In my own view family mediation is normally the best option for resolving issues concerning child arrangements.

However, mediation can struggle as issues become more complicated – particularly with regard to financial matters. A problem with mediation is that a couple can become used to saying no to each other and they become stuck. They can find it difficult to say yes – even where something reasonable is on the table. Sometimes clients struggle in mediation because they don’t have sufficient support.

For clients who need that extra support and for financial cases – and particularly as financial cases become more complex – my own view is that collaborative law offers a better alternative. Collaborative family law delivers many of  the gains from mediation – but with less stress.

 

Four-way Collaborative Family Law meetingsTeam work hands together image

Collaborative family law normally proceeds through a series of four-way meetings (sometimes five way meetings if there is a neutral – such as a financial neutral or a child neutral). There do not need to be an excessive number of these meetings. The first meeting will normally take place quite quickly after the clients have instructed their solicitors – in order to capture the early momentum. A timetable will then be agreed which will deal with matters such as financial disclosure and finding out the information needed to enable the collaborative process to then move on to finding reasonable solutions.

Because collaborative family law is very focused upon working together in a problem-solving way, integrating a financial neutral (a financial adviser who has had training about collaborative family law) can be extremely helpful – lawyers can’t give financial advice – financial advisers aren’t always clear/focused about how their advice sits against the legal negotiation – therefore including a neutral financial adviser into the legal discussion really helps there being a focused discussion on what realistic solutions are.

The final four-way meeting in a financial collaborative family law case will normally involve ironing out drafting points in a draft financial order and agreeing the other paperwork which need to be sent to the court for the financial order to be approved.

Long letters going backwards and forwards between solicitors can be expensive and can add to division – and collaborative law largely cuts this out.

 

Collaborative family lawyers in Devon and Somerset

In Devon and Somerset we are lucky to have an established group family lawyers who we are happy to work with. Collaborative family law is a different way of working – but for the right couples to can provide an extremely good process option.

For more information from one of our family lawyers in Devon and Somerset, please contact Ian Walker or Fiona Griffin. We are able to assist clients across our office network in Devon and Somerset including in Exeter, Honiton, Torquay, Taunton, Weston-Super-Mare and Yeovil.

_MG_5336How successful is family mediation?

It is impossible to know for Non-Legally Aided Mediation. There are no central and independently audited statistics.

What the Legal Aid Agency Mediation statistics show

There are statistics for Legally Aided Mediation though.

The outcomes of legally aided mediations are audited by the Legal Aid Agency. If success is over claimed, the Legal Aid Agency will disallow the success fee that is otherwise paid. If there was a pattern for this happening – then there would be sanctions under the terms of the Legal Aid Contract.

We can therefore say that the Legal Aid Agency statistics are reasonably reliable.

The latest round of statistics have recently been published

Here is a table:Legal Aid Mediation Statistics 2017

The Legal Aid Agency say:

Family mediation can be used to resolve issues to do with children or property and finance following divorce or separation, and the ‘all issues’ category describes mediations which deal with both areas.

The children category consistently accounts for the majority of starts, comprising 64% of all mediation starts in the last year (this information is taken from the more detailed data published alongside this bulletin).

Mediations can either break down or result in an agreement.

Like other areas of mediation, agreements fell following LASPO. They have since stabilised at just over half of pre-LASPO levels (see figure 16).

Mediations in the ‘all issues’ category can reach full agreement, where agreement is reached on all issues, or partial agreement, wherein an agreement has been reached on either children or property and finance, but not both. As such, successful agreements include both partial agreements and full agreements.

Over the last year 62% of all mediation outcomes involved successful agreements. The rate of success varied between different categories of mediation, with the highest proportion of agreements (63%) in the children category (this information is taken from the more detailed data published alongside this bulletin).

What do the figures tell us?

 There is a lot less Legally Aided Mediation taking place than before the legal aid reforms which were supposed to promote mediation: 15000 ish down to around 8000 ish per year (the 2016-2017 were down so far from 2015-2016)

A greater proportion of mediation is about children issues and this is more successful than financial mediation

Success within these figures also includes partially successful. This is most likely to be where children issues have been resolved and financial issues have not.

If around 40% of mediation is unsuccessful – the failure rate for financial mediation will be higher – this is because success includes partial success. What this is most likely to mean is a failure to resolve financial issues but that there has been success in resolving child arrangements. As in my experience many couples tend to focus on one area of dispute, resolving children issues when finances are in dispute tends to be more straightforward.

40% failure rate means that nothing has been resolved at all.

The proportion of successful mediation is no better now than before the legal aid changes – why is this? 64% successful in 2006/7, 68% success in 2007/8, 66% success in 2012/13.  Arguably the previous legal aid rules pulled even more contact cases into mediation.

Lets have a look at success rates in more detail…

There are more detailed statistics published Mediation Stats ChartMediation success statitistics

 

 

 

 

 

 

 

 

 

 

 

 

 

 

These charts are for the most recent full calendar year.

The overall success rate in finance only mediation is only 54%

When both finances and children issues are considered in mediation financial issues are resolved in only 51% of cases. Children issues are resolved in 60% of those cases.

Points to note/Questions

  • To have a legally aid contract for mediation a mediation service needs to have an experienced mediator working in the service and overseeing its mediators
  • Any mediator can undertake non legally aided mediation. Inexperienced mediators are likely to have higher failure rates.
  • If experienced and quality assessed mediators are more successful at children mediation than simpler financial cases – can we realistically think that they will be any better at more complicated financial cases – with multiple properties and significant pensions and other assets?
  • The normal family mediation model is only moderately successful in simpler financial cases – is it really suited for more complex cases?
  • There are a lot of mediations that break down – where to the cases go… largely to Court…where else can they go? which means the cost of mediation was wasted.
  • is a 54%  success rate for mediation in financial cases acceptable?
  • is a 63-ish% success rate in children cases acceptable? More so than finances certainly.
  • The help that mediation provides in successful cases shouldn’t be underestimated – this is a lot of families assisted to find a better way… but …
  • Couples entering mediation are ones where the couple want to mediate, they want to find solutions, and the mediator has assessed that there is a reasonable prospect of success. The failed cases shouldn’t be regarded as hopeless cases. The hopeless cases will already have been filtered out.

Our View

  • Mediation can be very difficult to set up – clients (often rightly) worry about whether the other is truly willing to negotiate, and sometimes they struggle themselves with the idea that they may have to compromise.
  • Sometimes mediation is undermined by solicitors. For example – I had one recent case as a solicitor where my client agreed resolution in mediation and shook hands – yet the other party’s solicitor immediately sought to renegotiate (despite her client having received advice in support of the mediation process). In the end my client paid some more to avoid litigation costs and because he had had enough. The mediator would count their work as a success – but this didn’t tell the whole story. In another case (financial) , as a mediator; I sent a couple off to get legal advice and a pension report and some legal advice. I was contacted some time later to sign the mediator part of the court application. They hadn’t obtained the pension report, but they had continued (unsuccessfully) negotiation via round table meetings and with counsel. The mediation had not broken down when I had last seen them – so why had they not come back?
  • The traditional family mediation model (mediator and clients in a 3 way meeting – with legal advice between meetings) struggles with financial cases and is best suited to children cases.
  • For financial cases it is often better to involve solicitors – but this means moving to a shuttle model with each team in different rooms. As a mediator who is also a Civil Commercial Mediator the different style of civil mediation is better suited to more complex and involved cases – including where professionals are involved. Involving Solicitors means that the mediation is less likely to unravel afterwards.
  • But no mediation can guarantee success. It cannot – because both sides are free to walk away – that is both a strength and a weakness. The voluntary nature of mediation helps because the couple are choosing to find a solution. It is their commitment. But there can clearly be no guarantees.
  • What can achieve 100% of decisions is going to Court! But this is very expensive and divisive. But Court decisions are not necessarily long term solutions
  • What can also achieve a 100% decisions – but at less cost by combining mediation with arbitration
  • Arbitration is another type of dispute resolution where a private judge (the arbitrator) is engaged. Arbitration is a flexible process which is much quicker than Court. There is a lot about it our website.
  • Under our mediation with arbitration scheme – if a mediated agreement cannot be achieved – then the case moves seamlessly into arbitration where an arbitrator (a private judge) makes a legally binding decision. But the process will be less divisive and perhaps 1/3 of the cost of a court process and much quicker – there is much more about all this on my website at https://walkerfamilylaw.co.uk/solicitor-led-family-mediation/mediation-arbitration-scheme/ Many of the benefits of mediation are retained because the couple are also choosing together to arbitrate if the mediation fails. It is therefore a voluntary process with a binding outcome. This has to be the way forward… combining the benefits of negotiation with the certainty that there can be a quick outcome if the mediation fails.
  • But the better model for mediation for finance cases is the civil model – which is purer and less emotive negotiation which involves solicitors better.

Is a 54% -ish success rate for financial mediation acceptable? You can see why people are wary – particularly when money is tight – but Court is rarely the answer. We think that our combination of mediation with arbitration provides the best option.

If you want to see the legal aid data look here https://www.gov.uk/government/statistics/legal-aid-statistics-october-to-december-2016

Should clients be put off  trying mediation?

No – remember overall 62% of cases were resolved. Resolution would have saved clients a lot of cost and should also have preserved or improved family relationships.

But – prospective clients need to be realistic – mediation is no magic wand.

For mediation to work, clients need to fully commit to the process and deliver on commitments made during the process. They must be prepared to have some give and take.

Perhaps also clients need to be more selective in their choice of mediator?

What are the mediators skills and background. Personally I always refer my clients to specific experienced mediators who are either practicing solicitors or who are non-practicing solicitors. But – I think my model of linking my mediation practice to a panel of arbitrators who are known to me is the way to go (although unfortunately legal aid is not available for arbitration – although if the matters still unresolved at the end of a mediation are reasonably narrow then a paper based arbitration can be inexpensive and certainly cheaper than the alternative)

Me – Family Law Solicitor/Family Mediator/Civil Mediator/Arbitrator

I have been a Family Mediator since 1996 and am a supervisor of other mediators. I am accredited by the Family Mediation Council and the Law Society. I am also a Civil/Commercial Mediator and member of the Devon and Somerset Mediation Panel. I am a Family Law Arbitrator (Children Scheme) via IFLA and I am a practicing Solicitor with Accreditations via the Law Society and Resolution.

In other words I am quadruple qualified.

This means I am aware of the pros and cons of all relevant practice models and am well placed to comment.

I have been undertaking legally aided mediation for nearly 20 years. I have my own Solicitors practice based in Honiton but covering Taunton and Exeter. Our Mediation with Arbitration scheme is portable to anywhere within a reasonable travel distance…

But, all this means that I understand how the different styles of practice work – and don’t work – and perhaps also how they can best work together…

Avoiding disputes about Christmas contact or finding solutions

As an experienced family law solicitor I know that Christmas is not a happy time that everyone. Indeed it can be very lonely and depressing. Some parents are for various reasons unable to spend time with their children on the main days of the Christmas holiday or even at all.

Family disputes in the run-up to Christmas

In the run-up to Christmas we deal with a surge in cases where separated parents are in dispute over the arrangements through which children will spend time with each parent over the Christmas holiday. Here are some hopefully helpful tips.

Tips to avoid disputes about the arrangements for children in the run-up to Christmas

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Are we the right Family Law Solicitors or Family Mediators for you?

What follows is a short piece which formed the basis of our Advert in East Devon’s Midweek Herald Newspaper in January 2014.

We regularly advertise in the Midweek Herald because it is a free newspaper that is delivered to homes in Honiton, Seaton, Axminster, Colyton, Beer and Ottery St Mary. It can also be found in Sidmouth. Our main office is in Honiton, although we are also able to see clients by appointment at our branch offices in Exeter and Taunton, so the Midweek Herald is a natural place to advertise. As an East Devon resident, Ian has been reading the Midweek Herald for quite a number of years.

Family Law and Mediation Experts in East Devon

Ian Walker has been a specialist Family Law Solicitor since 1992 and a Family Mediator since 1996. Ian has worked for Solicitors Practices recognised as amongst the best in the South West. Ian has a long commitment to good Practice and has served as a Member of the Family Law Committee of the Law Society, which promotes good practice and Law Reform. (more…)