The Collaborative Process – Changes to the Participation Agreement - Family Law Partners

The Collaborative Process – Changes to the Participation Agreement

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In March 2021, Resolution published an updated Participation Agreement and various resources for collaborative lawyers to use when supporting couple through divorce or separation. In her latest blog, family law specialist Gemma Hope explains what this means for the collaborative process.

I expect if you are separating from your partner you just want to find a solution, an outcome that enables you to move forward in the most positive and painless way possible. You don’t really care about what label is assigned to the process that helps you achieve that. There are many different process options out there e.g. DIY, assistance from a family consultant, assistance from a financial expert, mediation (traditional, shuttle, child inclusive, hybrid), the collaborative process, solicitor led negotiation, early neutral evaluation, arbitration, court). It may feel overwhelming to work out which path is best for you.

As a lawyer it will come as no surprise that I like rules. Not just for the sake of it but because they can help provide structure and boundaries and, in the context of helping separating families, a safe environment to enable constructive discussions to be had and fair outcomes to be reached. The rules however need to be adjusted so that they are kept up to date to ensure they are working for the separating families they are there to serve.

In my opinion the recent changes to the collaborative process participation agreement have done just that and are, I hope, the first step towards a much more integrated and less siloed approach to the different process options available to help separating families.

The collaborative process is in itself one of the pathways available to help separating families. Separating couples using the collaborative process sign up to a participation agreement. This is a written document that sets out that the terms and conditions of the process and it has recently been updated.

The new participation agreement still contains all the fundamental information about working in the collaborative process (in relation to working together towards a mutually beneficial outcome, confidentiality and privilege, code of practice and data protection) but it sets it all out in a way that is more understandable.

Teamwork has always been a crucial part of the collaborative process. The new participation agreement makes this clearer and provides additional information right from the outset of the different types of professionals that can help. The agreement explains how, through working collaboratively, the collaborative lawyers will help separating couples to design a service that will meet all of their needs through ensuring that they have the information, advice and support when needed, helping to reach an outcome cost effectively, efficiently and sensitively.

Part of the commitment when signing up to the participation agreement is that the collaborative lawyers will not be able to continue to represent an individual if an agreement can’t be reached between the couple. The commitment helps ensure there is no need to be adversarial or positional, the focus is on getting an agreement. Personally, I find this a real selling point of the collaborative process. It shows everyone is committed to trying to reach an agreed outcome, and allows discussions to be had without the worry that what is being said could be used as some kind of tactical advantage if the case ended up in contested court proceedings.

However, impasse can sometimes be reached within the collaborative process. Sometimes there can just be one discreet issue that can’t be agreed. Surely it can’t be right from the separating couples’ perspective for that to mean that they then have to start all over again, with new lawyers, and end up in court. This can cause a significant increase in time, stress and cost for the separating couple.

In recognising this, and in trying to create a more joined up approach to resolving issues that arise for separating couples, the participation agreement has been revised so that it is now possible for all parties to the participation agreement to opt in to being able to appoint an arbitrator to provide a binding outcome in respect of any issues that can’t otherwise be agreed.

Whilst this is seen as controversial by some I see it as a welcome change. In line within the principles of working collaboratively, the revision to the participation agreement requires all parties to be in agreement to put any issues before an arbitrator to determine. Crucially, all parties need to opt in – it would be the their choice, so they are still retaining the control and autonomy. I’m confident that in certain collaborative cases instructing an arbitrator can still be done in a way that is in line with the principles of working collaboratively, and doing that is likely to be better than the alternative which would see the separating couple having to start from scratch with new lawyers and potentially ending up in having to deal with matters in a much more adversarial way.

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If you are interested in a joined up and multidisciplinary way of dealing with you divorce or separation please do get in contact with one of our specialist team.

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