Collaborative Family Law

The Scotsman, by Campbell Deane, a solicitor with Bannatyne Kirkwood France & Co, October 26, 2004

THE family court in Medicine Hat, Alberta, Canada, was never the most bustling. But how many courts in the world have ever been closed because of a lack of business?

This unique achievement has been attributed to the success of a new method of dealing with family cases, which began in North America and is now being offered in Scotland.

Traditionally, family breakdowns have been dealt with by lawyers in this country in one of two ways: negotiation or litigation. But it's now widely accepted that the pugilistic tendencies associated with both methods may not help to resolve sensitive issues, such as how much time a father can spend with his children.

A third option, mediation, has had some success, but requires both sides to place a lot of trust in a third party, the mediator, without having a lawyer to guide them.

Now a fourth method, collaborative law, attempts to improve on that by conducting discussions through a series of four-way meetings between the husband and wife and their respective lawyers.

The crucial difference is that before they can get round the table, all four parties - the lawyers included - have to sign a participation agreement in which they undertake not go to court. If the client decides to walk away from the discussions, the lawyer has to stick to the deal and tell the client to seek advice elsewhere.

The gut reaction of many Scottish solicitors to this might be akin to that of a turkey canvassed for his views on Christmas. If you have had a commercial client for a number of years, what would be the point in jeopardising that relationship?

But the converts to collaborative law argue that by creating an environment where parties can reach agreement, it is more likely that you will end up with both sides being able to reach an outcome they can live with. By signing up for the deal, the lawyers also have a vested financial interest in its working. It also has to be remembered that where litigation has been resorted to in a matrimonial situation, very often the only thing both sides ultimately end up agreeing on is how frustrated and skint they are at the end.

And guess who gets the blame for that?

While at the outset the last thing the client may want to do is get into a room with their former partner (at least, not without a full set of crockery), the reality is that ultimately they will have to, whether that room is a lawyer's office or a court.

The participation agreements commit each party to being frank, constructive and co-operative - concepts which some of the Read More ..ded members of the profession may need a refresher course on.

I heard collaborative law being outlined to a group of family lawyers in Edinburgh earlier this month by Shona Smith of Balfour Manson, and while some of its California-isms sent a collective shudder around the room, there nonetheless appeared to be a willingness to give it a try.

Along with a handful of other established family lawyers, Smith is now organising training sessions, as this method clearly depends on there being a lawyer on the other side who understands it.

If collaborative law could establish the idea of solicitors agreeing not to go to court in this country, our lordships would certainly have fewer cases to wade through each day. But I'm sure there's no danger they will be facing redundancy for a good while yet.

• Stephen Smith is a solicitor with Bannatyne Kirkwood France & Co. Campbell Deane is away.