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MEDIATION & OUT OF COURT OPTIONS

Collaborative Family Law

About Collaborative Family Law

Collaborative family law settles the arrangements after a separation in a series of meetings between you, your former partner and a collaboratively trained lawyer for each of you. Everyone signs an agreement to try to resolve the issues without going to court, and those lawyers cannot represent you in court if the process breaks down. We explain that commitment, advise you on what you are being asked to sign and on the terms you are offered, and turn the terms into a court order where one is needed.

Who this is for

  • Separating spouses, civil partners and unmarried couples who want to settle finances and child arrangements in the same room, each with their own lawyer
  • Parents who will need to keep co-operating for years and want a process built around that
  • Couples who have ruled out mediation because they each want legal advice in the meeting itself
  • Anyone who has been asked to sign a participation agreement and wants to understand the commitment first

How RakLAW helps

  • Advise whether the collaborative process suits your case or another route would serve you better
  • Go through the participation agreement with you before you sign it, including what happens to your representation if the process ends without agreement
  • Advise you between meetings on disclosure, the law and what a court would be likely to approve
  • Point you to a financial adviser, an accountant or a child specialist where the issues call for one
  • Draft the consent order and statement of information, or the written agreement about the children, once terms are reached
  • Take your case on for court if a collaborative process with other lawyers has broken down and you need new solicitors

What Collaborative Family Law Is

Collaborative family law is one of the non-court dispute resolution routes recognised by the Family Procedure Rules. You and your former partner each appoint your own collaboratively trained lawyer, and the four of you work through the issues together in a series of meetings, usually called four way meetings. Your lawyer is beside you throughout, so you get legal advice as the discussion happens.

That is the main difference from family mediation, where an independent mediator who advises neither of you runs the meetings and you take legal advice separately. It also differs from solicitor led negotiation, conducted largely in correspondence, and from round table meetings, which carry no commitment to stay out of court.

It can be used for the finances on divorce or dissolution, for the arrangements for children and for the separation of an unmarried couple. Resolution, the community of family justice professionals, describes a collaborative team that can also include an independent financial adviser, a family consultant, a child specialist or an accountant.

The Participation Agreement

At the first meeting everyone signs an agreement, often called a participation agreement. Resolution describes its two effects: it commits you both to trying to resolve the issues without going to court, and it prevents the collaborative lawyers from representing either of you in court if the process breaks down.

The second effect is deliberate: both of you know that walking away means starting again with new solicitors, so everyone in the room has a reason to keep working towards terms.

Before you sign we go through the agreement with you: what you are committing to, what information you must share, whether what is said in the meetings can be referred to later, and what happens to your representation if the process ends without agreement. Nothing in it removes the court's role at the end: a financial order still needs a judge's approval.

Disclosure, Breakdown and Common Problems

The process depends on both of you sharing full financial information voluntarily: there is no court timetable compelling disclosure and no judge to order a reluctant party to produce documents. If you believe your former partner is hiding assets or will not produce bank statements, pension valuations or company accounts, the process is unlikely to work, and financial remedy proceedings, where disclosure is ordered by the court, may be the only realistic route. Our page on hidden assets and non-disclosure explains the court's powers.

A consent order can still be set aside for fraudulent non-disclosure. In Sharland v Sharland the Supreme Court confirmed that each party owes a duty of full and frank disclosure to the other and to the court, and that a consent order procured by fraud is set aside unless the fraud would not have influenced a reasonable person to agree and the court would not have made a significantly different order.

The problems we see most often are these:

  • one person signs the agreement without being committed to it and uses the meetings to delay
  • a power imbalance in the relationship, including any history of abuse or control, which the meeting format can reproduce
  • an urgent problem, such as assets being moved abroad or a child about to be taken out of the country, which needs a court order rather than a meeting

Where there has been domestic abuse, the collaborative process is rarely suitable. If you are in immediate danger call 999, and the National Domestic Abuse Helpline is 0808 2000 247. Our domestic abuse and injunctions pages explain the protective orders the court can make.

How the Collaborative Process Works

Resolution sets out the sequence of a collaborative case.

  1. You each meet your own lawyer separately to discuss whether the process suits you, what to expect in the meetings and what to prepare for the first one.
  2. The two lawyers speak to plan the first meeting, and any other team members, such as a financial adviser or a family consultant, are brought in.
  3. At the first four way meeting the lawyers confirm that you both understand the commitment, everyone signs the participation agreement, you each set out your objectives and the next agenda is fixed.
  4. Later meetings deal with your priorities in turn: how the children are coping and will be cared for, how financial information will be exchanged, and then how the assets, income and pensions will be shared.
  5. Between meetings your lawyer advises you privately on what the law provides and whether a proposal is one a court would be likely to approve.
  6. At the final meeting the documents recording what you have agreed are signed and the lawyers explain what remains to be done, for example where the family home is to be sold.
  7. Your lawyers then put the agreement into effect, obtaining a court order where one is needed.

Court Orders and the Family Procedure Rules

Where you are married or in a civil partnership, an agreement about money reached in collaborative meetings is not, by itself, enforceable. In Sharland the Supreme Court restated that an agreement between separating spouses about financial arrangements is not an enforceable contract, although the court will make an order in the agreed terms unless it has reason to think there are circumstances into which it ought to inquire. Section 33A of the Matrimonial Causes Act 1973 lets the court make a consent order in those terms on the basis of the prescribed information alone. Paragraph 66 of Schedule 5 to the Civil Partnership Act 2004 gives the court the same power on dissolution. Unmarried couples cannot apply for a financial order of this kind, so what they agree stands or falls as a private contract and on how it is drafted, which our separation for unmarried couples page explains. Where there are children, financial provision for them can still be ordered under Schedule 1 to the Children Act 1989, whether or not the parents were married.

In practice we draft a consent order in the agreed terms, each of you signs it, and under rule 9.26 of the Family Procedure Rules each party files a statement of information for the judge. Unless the court directs otherwise you need not attend, and the MIAM requirement does not apply to an application for a consent order. The amount of the court fee is on the GOV.UK court fees page.

For children an order is not always needed. Section 1(5) of the Children Act 1989 provides that the court shall not make an order unless it considers that doing so would be better for the child than making no order at all, so many parents keep to the arrangements agreed in the meetings. Where an order is wanted, we advise on applying for a child arrangements order by consent.

If the process breaks down and one of you applies to court, section 10 of the Children and Families Act 2014 requires a mediation information and assessment meeting first unless an exemption applies. Rule 3.8(1)(d) exempts a person who, in the 4 months before the application, attended a non-court dispute resolution process about the same or substantially the same dispute, with the written confirmation from the provider that Practice Direction 3A requires. Our MIAM advice page covers the other exemptions.

Once proceedings are under way the court must consider at every stage whether non-court dispute resolution is appropriate, and in financial remedy proceedings where the MIAM requirement applies each party must normally file a form, verified by a statement of truth, setting out their views on using it. The court cannot order you into one, but in financial remedy proceedings, where the general rule is that no party pays another's costs, rule 28.3(7)(aa) requires the court to have regard to any failure by a party, without good reason, to attend a MIAM or non-court dispute resolution when it decides whether to make a costs order because of a party's conduct.

The Family Mediation Voucher Scheme does not apply to collaborative law: GOV.UK states that the voucher is restricted to funding mediation sessions only. RakLAW Solicitors is privately funded and does not do legal aid work; our charging basis is on our family law fees page.

When Legal Advice Is Especially Important

Advice before you sign matters most where:

  • you have been handed a participation agreement drafted by your former partner's lawyer and are unsure what it commits you to
  • there is a business, a valuable pension or property abroad, so the terms depend on valuations the meetings cannot compel
  • a child's living arrangements, schooling or a move away are in issue and you want whatever is agreed to be enforceable
  • assets may be moved before terms are reached, where a freezing order rather than a meeting may be needed
  • the separation affects someone's immigration status, which belongs with our immigration solicitors

How RakLAW Solicitors Can Help

We advise on the collaborative process from 42 Shad Thames in Southwark, a short walk from Tower Bridge, as part of the mediation and out of court options we offer. The first step is a free 15-minute consultation in which we say honestly whether collaborative law, family arbitration, a private FDR or a court application is the right route.

We advise on whether the collaborative process suits you, help you find a collaboratively trained lawyer for it, and act for you in the alternatives: solicitor led negotiation, round table meetings, a private FDR or arbitration. If a collaborative process with other lawyers has ended without agreement we can take your case on for court, because the disqualification binds the lawyers who signed the agreement and, depending on its terms, their firms, and we were no part of it.

Book an appointment online or call 0203 345 2000 to arrange your free consultation.

Related services

Frequently asked questions

What is the difference between collaborative law and mediation?

In mediation an independent, professionally trained mediator helps you work out arrangements and advises neither of you. In collaborative law each of you has your own collaboratively trained lawyer in the meeting, and everyone signs an agreement that those lawyers cannot represent you in court if the process breaks down.

Do I have to attend a MIAM before using collaborative law?

No. Section 10 of the Children and Families Act 2014 requires a MIAM before a relevant family application to court, not before a non-court process. If the collaborative process breaks down and you then apply to court, you must attend a MIAM unless an exemption applies; attendance at a non-court dispute resolution process in the previous 4 months, with written confirmation from the provider, is one of them.

What happens if the collaborative process breaks down?

The participation agreement prevents the collaborative lawyers from representing either of you in court, so you would each instruct new solicitors for any application. Whether what was said in the meetings can be referred to later depends on the agreement you signed, which is one reason to read it carefully first.

Is an agreement reached through collaborative law legally binding?

Not on its own, where money is concerned. An agreement about the finances is not an enforceable contract by itself. We turn the terms into a consent order approved by a judge. For children, parents may simply keep to what they agreed, because the court makes an order only where that would be better for the child than no order.

Does the family mediation voucher cover collaborative law?

No. GOV.UK says the voucher is restricted to funding mediation sessions only. Collaborative law is paid for privately by each of you. RakLAW Solicitors does not do legal aid work, and our family law fees page explains how we charge.

Can collaborative law deal with child arrangements as well as money?

Yes. Resolution describes meetings that cover how the children are responding to the separation and the arrangements to be made for them, as well as the finances, and a child specialist or family consultant can join the team. Where you want the arrangements to be enforceable, we advise on a child arrangements order by consent.

Is collaborative law suitable where there has been domestic abuse?

Usually not. The process depends on both of you negotiating freely in the same room, and a history of abuse or control undermines that. Evidence of domestic abuse is also a MIAM exemption, so a court application can be made without one. If you are in immediate danger call 999; the National Domestic Abuse Helpline is 0808 2000 247.

How many meetings does the collaborative process take?

It depends on the issues and on how much financial information has to be gathered. Resolution says some couples need only a couple of meetings and others four or five, and that the process is not driven by a court timetable.

Can an unmarried couple use collaborative law?

Yes. The process is a way of negotiating and is not limited to married couples or civil partners. The law that governs the outcome is different for unmarried couples, which our unmarried couples and cohabitation pages explain.

Speak to a RakLAW Solicitor

Book a confidential consultation with our family law team. We will talk through your situation, explain your options, and set out the practical next steps.

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