Collaborative Law – Would it work for our divorce?

Tamsin Caine is joined by Sue Brookes to discuss collaborative law as an option for divorcing couples. She asks what it is, how is works and who it might be suitable for. She also finds out what the downsides and pitfalls might be.

 

Your Host

Director of Financial Planning and Chartered Financial Planner Tamsin Caine has a strong background of over 15 years within the financial services profession. She began Smart Divorce following her own experience with divorce; she now advises people in the same situation as she once was, enabling them to take back control of their life and finances. Smart Divorce website is www.smartdivorce.co.uk. Contact her by email tamsin@smartdivorce.co.uk.

Special Guest

Collaborative lawyer and mediator, Sue Brookes of Mills and Reeve talks to Tamsin Caine about collaborative law; what is it, how does it work and how can it help divorcing couples to separate amicably?

Sue is an experienced and specialist family lawyer and mediator. She enables clients to resolve the financial and practical implications of separation and divorce as painlessly as possible, whether through advice or mediation. She helps married and unmarried clients with wealth protection through cohabitation and nuptial agreements. Sue works with national and international clients, including business owners and professionals.

As a solicitor, Sue helps clients move forward in the way that is most appropriate for their own individual circumstances. This ranges from expert legal advice in the background to collaborative law, solicitor negotiation or litigation. Contact details for Sue at https://www.mills-reeve.com/people/sue-brookes.

Transcript

Tamsin Caine: Hello and welcome to you the Smart Divorce Podcast. This podcast is for you. If you’re thinking of separating, already separated or going through divorce. My name’s Tamsin Caine and I’m a Chartered Financial Planner. We’ll speak to some fantastic specialists who can help you to get through your divorce, hopefully amicably and start your new chapter positively now over to today’s guest…

Tamsin Caine: Hi and welcome to the Smart Divorce Podcast. I’m delighted to be joined today by Sue Brooks of Mills and Reeve. Hi Sue.

Sue Brookes: Hi Tamsin.

Tamsin Caine: So do you want to start by introducing yourself and telling the listeners a little bit about what you do?

Sue Brookes: So I am a family solicitor, collaborative lawyer and family mediator that is based on Mills and Reeve in Manchester. My job is really to help anyone deal with family law issues. Whether it is helping them from a wealth protection perspective at the start of a relationship or during the relationship, we’re helping them deal with issues they need to sort out in the relationship if the relationship has broken down.

Tamsin Caine: Fantastic. So we’re going to talk about today about collaborative law, as being the process that couples might opt for when they’re separating. Do you want to give us a bit of background on how that works?

Sue Brookes: So the idea is that as a collaborative lawyer, I’m helping my client to sort things out, him or herself and I work with a collaborative lawyer who’s advising the other party. Everything takes place within four-way meetings, four-way discussions and often four-way e mails with a view to the couple sorting it out themselves with the support of the lawyers as much as they need it. Also under the support of any of the professionals, they may need as well. So the idea is that you’re getting away from the “my clients said this and my client said that” and the partisan approach of traditional litigation. And you’re working together in a constructive and a conciliatory way as much as possible to sort out whatever it is we’re dealing with.

Tamsin Caine: Okay, so when you say four-way meetings, you have then, let’s say husband and wife, traditionally, and then each of those has a representative lawyer. Is that right?

Sue Brookes: Yes, so each of those has a collaboratively trained lawyer. So again, it’s two people who are trying to deal with things in the same constructive way. The idea of the traditional collaborative law route is that everyone agrees that they will deal with it either in these meetings or in the collaborative correspondence and that, neither will issue an application to the court. So you are committing to try and sort things out by discussion, by agreement on a voluntary basis, with the idea being that at the end of the process, you have whether it’s a legally binding nuptial agreement or legally binding financial settlement in a divorce, if that’s the situation that you’re working in.

Tamsin Caine: Okay, so are there situations that are best suited to working through the collaborative process? Are there certain couples who fit the brief and certain couples who don’t?

Sue Brookes: So I think collaborative law is suitable for anyone who, first of all, wants to sort things out by agreement if at all possible and also who is confident that both they and the other person involved is prepared and willing to compromise at the end of the day. It’s not gonna be suitable for someone who wants the best possible outcome for themselves or who’s not prepared to listen to what the other person has to say. It’s not gonna be suitable for someone who, if your client is not that, let’s get full disclosure or he says that their ex partner is going to hide the things or be dishonest in any way because the whole purpose is that you’re getting around the table, that you’re trying to work together to sort things out.

Tamsin Caine: Okay, so somebody who’s listening to this and who thinks, actually, I think this might be suitable for us. How would they go about finding a collaborative lawyer and what would the steps look like?

Sue Brookes: There are various ways that you can find a collaborative lawyer. You could look on the Resolution Website and Resolution is a National Association of Family Lawyers based all over the country so you can find a collaboratively trained one there. In Manchester, we have the Manchester Dispute Resolution Group. We’ve got our own website that you can find us on more locally based in the Northwest area, and I think the starting point is really to find someone who is collaboratively trained and then to sit down and talk with them about what your specific situation is. To understand the options in more detail because it really is about as collaborative lawyer when I meet with my clients, I’m trying to find out whether I think it’s going to be beneficial for them, whether I think it’s something that they would be interested in and exploring with my client  initially, whether it’s an option and then it’s very much about seeing who the other person is going to instruct because it’s not going to work if the other person is either unwilling to consider collaborative or if they’ve approached a solicitor who is not collaboratively trained, that’s usually the end of the the exploration, unless they’re willing to change their choice of solicitor at that  stage. Though, I do have cases where we work collaboratively, but we don’t deal with it in the formal collaborative process and by that I mean if you are really going to deal with things collaboratively, you would all signed an agreement saying that you’re not going to go to court, so you’re bound by the agreement to ensure that you really are committed to making it work.

Tamsin Caine: Okay, so let’s assume that everything’s agreed. It looks as though you’re going to be able to work collaboratively. What happens next? What are the first steps? What does process look like?

Sue Brookes: So the same. We start with me and my client making sure that we’re happy with it. And then once I’ve got my client’s buy in, I would have picked up the phone to speak to this solicitor onto the side and again, it’s exploring that they’re both buying into the process in the same way. And then it really is about having a discussion with the solicitor to work out how we’re going to structure the first joint meeting. We would normally start talking about agendas. I’d want an understanding of what we think the issues are likely to be and what level support the clients are likely to need, because then we can start thinking about where this is going to go. So I’ve had some collaborative cases where everything has been dealt with in a single meeting, and we’ve got to the end of the process or the end of that meeting, and we’ve got a clear agreement as to what’s gonna happen next in terms of the divorce and finances. You want to know whether you’re trying to sort starting one meeting or whether you think there’s going to be a series of meetings and we’re going to need detailed disclosure. And whether we’re going to need the import of third parties, whether that’s a family consultant or a  financial, depending again what the issues are. So it’s really about managing the process from the start to avoid surprises, to avoid issues cropping up that you’re not expecting or that you think are really going to create issues. It’s always better to try and clear these things up from the start as much as possible. Then once me and the other solicitor are happy and we fed back to our clients. We then start with the first four-way meeting, and that’s where we all get into the room. Again, we’ll talk about the process again to make sure that everyone’s happy to proceed. We are very clear whether we’re signing the participation agreement, which is this contract that I mentioned that says we’re all going to remain committed to the process or whether for some reason, we’re not ready to sign it. Again, it’s all exploratory at this stage. Often I find it’s helpful at the start of that first four-way for clients to give what’s called a anchor statements. And that’s where you invite your client to say why do you want to deal with this collaboratively? What is it about the collaborative process that has attracted you, and where are you trying to get to at the end of it, in terms of the relationship with the other person, because that then does anchor the process. When things get difficult, as they inevitably do, you can come back to a why are we here, why are we trying to sort it up out this way? And so I think these anchor statements can be very helpful. Then it is really about starting to work through the agenda, and then achieving as much or as little is feels right in that first meeting. But the thing about collaborative is it’s a very flexible process. So you really do ensure that you’re working at the pace of the slowest person. Sometimes that’s one of the couple. Sometimes that’s one of the lawyers you know, depending on what issues are. But you’re working at a pace that feels right for everyone. And you’re working at the level of detail that feels right for everyone as well. So you’ll have situations where one person has no idea of the finances and other cases where both are completely all over the detail, and they’re bringing the lawyers up to speed as much as we need to be to be able to help the clients. So it’s very case specific and it’s very individual, and it’s very flexible as a process.

Tamsin Caine: You see to me as a non lawyer, it sounds a really sensible process to go through to achieve an amicable settlement. Are there disadvantages of the collaborative route?

Sue Brookes: I think the the key one that I do tend to warn clients about is that it can be quite expensive process because you’ve got two lawyers in the room. So if you’re dealing with a couple who feel able to sit down and talk about things themselves, who feel that they have either enough detail of the finances or that you know they trust the person enough to be able to work through these things together. Collaborative law is  like mediation. It’s got the same ethos. It’s is trying to help a couple to help themselves, but you’ve got the two lawyers in the room, so I think cost is always a factor. But I think it’s absolutely brilliant for couples who want to sort things out themselves but they need the support of their individual lawyers. And there are many people that I work with who don’t feel comfortable or have concerns about simply going to family mediation and effectively feeling like they’re on their own without the lawyers there, as the traditional from the mediation model is. So that’s where Collaborative Law is a way of helping them in the same way but giving them the support they need.  With the cases that I’ve dealt with it absolutely brilliant, because they really do feel that they’ve gone through a process them has worked, it’s been supportive. It’s felt right for them, and it’s going to where they need to be. And if you come out of the end of the process feeling like that, that actually it is worth the money that has been spent on it. Cost is a factor. I think obviously, then there’s practical things, like if you’re trying to get two lawyers and two parties in a room, you need to be very clear about how you’re managing everyone’s diary. And, I think for some people, if you are in a situation where you’re signing a participation agreement, saying if the discussions break down and one of you gets to the stage where you have to issue a court proceedings, the lawyers need to change. You need to go off and find a new lawyer at that stage, and that is a negative for many people, which is why people sometimes do what’s called collaborative light, which is where you try and deal with things collaboratively. But you don’t sign the participation agreement. But I think actually having the participation agreement in the right case is absolutely brilliant and essential because it really is the glue that binds everyone together. When it does get difficult, when people are feeling that progress isn’t being made, it gets them back to the table and reminds them why they’re here in the first place. It often is the thing that ensures the agreement is reached rather than for whatever reason, them going off their separate ways and issuing court proceedings, which is obviously what they hoped to avoid in the first place.

Tamsin Caine: Yeah, no, that makes that makes complete sense. And so when you’re working collaboratively with couples, do you tend to be working on financial settlements or children or a combination of both with most people?

Sue Brookes: It’s a combination of both. It’s also the wealth protection side of things. So it’s a perfect way to deal with nuptial agreements or cohabitation agreement as well, because that’s when people are still in the relationships so you’re working together with people who are still very much a couple at that stage,

Tamsin Caine: Course, that never even crossed my mind that you could do that cooperatively. Okay, that’s excellent. And so is there anything else that I should have asked you today that you don’t think that I’ve asked you?

Sue Brookes: I think for me, the way I try to deal with any client who walks through my door is really about tailoring the service and the process to that individual client. So there will be people who have heard this who think it sounds interesting. They may have concerns. They may have questions, and they may be wondering whether collaborative law or mediation is the right process for them if they want to try and sort things out. And it really is about having that discussion and about being open and addressing what the concerns may be, understanding what the issues are likely to be.  Starting the process in the best possible way to give them the outcome that they would like to achieve. So whether that’s collaboratively, whether it’s mediation, whether it is one of the other options that you can look at, it’s about what’s right for that client.

Tamsin Caine: It’s just knowing what options are out there and available to you. And I think also it seems to me that unless both parties are willing sort things out amicably, it’s not gonna be possible. And you may need to go down the route that you, as an individual, don’t necessarily and want to go down. Would you agree with that?

Sue Brookes: Sometimes, yes. But then sometimes it is just a question of timing. So again, that’s the initial discussion that I tend to have with clients. Do they need to do something straight away? Is there a reason why you’ve been rushing off and going down the court route or traditional solicitor route, if it is just a matter of timing. And then again, it comes back to what what they need. So family consultants, family therapists, coaches, counsellors can be really beneficial in terms of helping people to get ready to sit around the table to talk or ensuring that they’ve got the right financial advice in place, whether it’s taking financial planning advice, whether it’s mortgage advice, whether it’s understanding the pensions in more detail. Whatever it may be that feels like a block. And yes, of course, there are always cases have to litigate. There are always cases where one person wants to sort things out amicably and the other just doesn’t, for whatever reason. But it’s always taking a step back and saying what can we do to help them to deal with things in a way that is constructive rather than letting it just go off down a route that your client doesn’t want to happen.

Tamsin Caine: I like that. That makes a lot of sense. That’s fantastic. Thank you so much for joining me today, Sue, that’s been really good.

Sue Brookes: Thank you.

Tamsin Caine: Thank you for listening to The Smart Divorce podcast. If you like details of our guest today or myself so you can get in touch, please check out the programme notes. Many thanks, see you again soon.