While the Family Court has been prioritising urgent matters, and often adjourning others, the process of Collaborative Law may be useful for couples undergoing separation or divorce. Collaborative family law draws upon skills that are applied in mediation, whereby lawyers work together to facilitate discussion between the parties, with the aim of reaching a settlement without the process of litigation. This involves confidential and transparent negotiations, and written agreements that the parties will not litigate or threaten to litigate in relation to the dispute. As such, this form of dispute resolution may be favourable to those undergoing a divorce or separation in the current legal climate. Indeed, due to the COVID-19 pandemic the has created a 39% increase in urgent applications in the Family Court, and 23% in the Federal Circuit Court.
Who is suited to using collaborative processes?
Collaborative law is designed to be accessible and more informal compared to litigation, and as such does not favour one type of person or exclude others. However, due to the open and transparent nature of collaborative law, those with severe psychological or personality disorders, or those who have engaged in a history of domestic violence, may find that they do not respond as effectively to this form of dispute resolution.
A collaborative practitioner is trained to screen a client in or out of the process. If it becomes clear that the client, or their former partner, is unsuited to the collaborative process, then the lawyer is able to make this judgement and consider other avenues.
How does collaborative practice differ from other forms of Family Dispute Resolution?
The main distinction between Collaborative practice as opposed to other forms of Family Dispute Resolution is the avoidance of litigation, and the commitment to negotiation that does not operate in the shadow of the court. While the separating couple can theoretically abandon the collaborative process and pursue litigation, the lawyers are voluntarily excluding themselves from ever representing these clients in court and will endeavour to reach a settlement by way of discussion and negotiation.
Collaborative law is a practice model that is extremely suited to resolving disputes between separated couples. Particularly, given that the courts are comparatively less accessible during the current COVID-19 pandemic, the collaborative process may provide an avenue for couples who are undergoing a divorce or separation, without involving the court.
At Nicholes Family Lawyers, our staff are trained collaborative practitioners who are motivated to preserve peace, enhance good communication and assist couples reach a settlement without court intervention. Should you require any legal advice in relation to a divorce or separation, please contact Nicholes Family Lawyers at [email protected], or via telephone at 9670 4122.