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What is collaborative law?
Collaborative law is a non-adversarial approach to resolving disputes, whereby the parties and their lawyers enter into a formal agreement to settle a matter without involving the court. Parties will participate actively in a process of open negotiations that are aimed at reaching a settlement.
Collaborative law can be used in many areas of law, but can be especially useful in family law in Collaborative Family Practice (CFP) to resolve disputes outside of the court system and encourage the ongoing involvement of both father and mother in their children’s lives.
What is the difference between CFP and Mediation?
Mediation is another viable option for parties seeking a divorce in Singapore to separate or end their marriage through negotiation, and avoid the lengthy and costly process of litigation. The benefits are similar to that of CFP, where parties gain greater control over the separation process and find solutions that are both mutually acceptable and sustainable.
In the mediation process, parties are expected to file their documents with a Family Court before proceeding to negotiation. These negotiations involve a neutral third party, either a mediator or a judge, who will facilitate discussions between the parties without providing legal advice.
In the CFP process, however, parties must each retain a lawyer to represent their respective interests. The parties and their respective lawyers will work together to negotiate the terms of the separation in a structured manner before filing their agreement with a Family Court. The CFP lawyers will be able to advise and support you in achieving a settlement.
Why choose collaborative law?
Family disputes are typically emotionally charged. The litigation process can be both traumatic and a miserable experience for those who are involved, especially if parties take an aggressive approach. It is not uncommon for estranged couples to resort to extreme measures to try and gain an edge over the other by airing their grievances in the courtroom. The children, if any, may also be unnecessarily roped into the middle of the parties’ conflict.
Ultimately, the eventual decision by the Court may not adequately address or resolve the relational aspects of the dispute. This means that both your time and expenses could have been put to better use.
When divorce proceedings have been initiated, it may be in the best interests of both parties to settle the terms of their divorce amicably, without a drawn-out tussle. A prolonged dispute will not only cause the parties, but also their children, greater emotional and financial burden.
How does the CFP process work?
- Both you and your spouse will engage a collaboratively-trained family lawyer who has been accredited by the Singapore Mediation Centre.
- In your initial meeting with your lawyer, your lawyer will discuss whether the collaborative process is suitable for your circumstances.
- Both parties and your respective lawyers will undertake an agreement not to go to Court.
- Parties must make full and frank disclosure of any required information to ensure a more open and cooperative environment in which the parties can work through the issues at hand. TRUST is of utmost importance in CFP.
- The collaborative process is confidential. This means that the terms of your settlement will not be public.
- All discussions and documents are legally privileged and conducted on a “without prejudice” basis, so that information disclosed during the collaborative process cannot be used in court should no settlement be reached, with the exception of financial disclosures. This prevents parties from engaging in CFP for the sole purpose of gaining access to information that could be used against the other party in litigation.
- Most of the negotiations will take place at face-to-face 4 way meetings involving you, your partner and your respective lawyers. This allows you and your spouse to be in control of the negotiations and reduces misunderstandings.
- Correspondence between your lawyers is kept to a minimum apart from the exchange of meeting minutes and discussion points for future meetings.
- Once a settlement has been reached, your lawyers will draw up a settlement agreement which will be filed in the Court as a draft consent order for approval. The Court will seal the terms and turn them into a Court Order.
What your lawyer can do for you in the CFP process
The collaborative process can be used to address all of the issues addressed under the traditional divorce process, such as:
- Child custody care and control, child access
- Spousal and child maintenance
- Division of matrimonial assets
The CFP process can be split into three main stages:
1. Determining your goal and interests
- A good CFP lawyer will commit the time and resources necessary to gain a clear understanding of your interests and goals. Your lawyer seeks to establish and maintain a relationship of trust with you. So far as practical, the lawyer for each party should ensure that one party is not at a disadvantage in relation to the other regarding the payment of professional fees.
- Your lawyer will then assist you in collecting and exchanging information with your spouse and the other lawyer involved.
2. Generating and evaluating options
- Your lawyer will provide you with advice, setting out the different options for resolving the dispute. He or she will educate you on the law and its application to your matter.
- This discussion will be directed towards a fair process and just outcomes for both parties and in certain cases the process will be of equal importance to the outcome.
3. Negotiating towards settlement
- Your lawyer will be there to assist you in communications with the other participants in the collaborative process, and search for solutions which promote the interests of both parties.
- He or she will help to ensure that all negotiations take place in an open and respectful manner.
Once a settlement has been achieved, the lawyers should draft all necessary documents to implement the settlement including, where appropriate, initiating court proceedings on a consent basis.
Benefits of Collaborative Law
1. Structured negotiation
- CFP provides a formal, structured negotiation in which all pertinent issues would be addressed by your respective lawyers, including but not limited to the division of matrimonial assets, maintenance payments and custody of the children.
- You can be assured that your lawyer will be committed to advising you on the issues at hand and helping you achieve your reasonable settlement goals that is in the best interests of both you and your family.
- The immediate threat of litigation in court is removed, together with the costs and emotional strain that come with court proceedings. This creates a holistic and safe environment for negotiation and encourages you and your spouse to reach a fair settlement.
- The CFP process recognises that a separating couple can still engage in constructive communication, having regard to long-term family relationships.
- Parents who are concerned about role-modelling should also consider the benefits of maintaining a cohesive and secured environment for their children, who can be especially vulnerable during the separation process.
3. Control over process and outcome
- CFP directly involves the parties in negotiations, where they can manage both the process and outcome of dispute resolution.
- For example, you can decide on the timetable of your negotiations to your own convenience instead of adhering to the Court-stipulated dates.
- A large portion of the process requires direct input by you and your spouse, under the guidance of your respective lawyers. This is fundamentally different from a traditional litigation approach where most issues are addressed in correspondence between the parties’ lawyers.
- More importantly, the final decision will be made and agreed on by you and your spouse, rather than an independent judge.
4. Interest-based negotiation
- Interest-based negotiations are about cooperation, not confrontation. It is usually more efficient for parties to engage in shared problem solving, by trying to understand and accommodate the goals and interests of the other. The CFP process also encourages parties to develop realistic expectations of the negotiation process.
- In contrast, position-based negotiations are often focused on the parties’ grievances or allegations. Parties often take strong positions and amplify or inflate their needs and interests, hoping to reach a settlement that is in their own favour.
5. Effective and timely resolution of dispute
- A prolonged and contentious dispute is neither profitable nor constructive for you and your spouse. Collaborative law can be a less costly and faster method of dispute resolution, depending on your particular circumstances. It helps you to avoid or reduce the hardship of separation without jeopardizing your interests.
- The confidentiality provisions in the CFP agreement ensure that any information disclosed during the collaborative process are not admissible in subsequent court proceedings. This protects the identity of both parties and their children, if any.
Limitations of collaborative practice
1. No guaranteed settlement
- There is no guarantee that parties will reach an agreement through the CFP process. Thus, parties have to be mentally prepared that the CFP process may fail, for various reasons.
2. High conflict cases
- Collaborative law may not be suitable for all family law disputes. Which dispute resolution process is most appropriate ultimately depends on the circumstances of each family. In particular, parties who feel extreme hostility towards one another or have particularly poor communication skills are unlikely to collaborate successfully.
- Similarly, collaborative law is generally considered inappropriate in cases that involve incidents of family violence, mental illness, extreme power imbalances or substance abuse.
- Your lawyer will be able advise you on whether the CFP process would be is suitable for you, and if not, the other options that are available. In some circumstances it may be appropriate for the parties to attend mediation and/or counselling.
What happens if the CFP process fails?
Parties will have signed upfront an agreement informing them that they cannot use the same lawyers engaged for the CFP process if the matter proceeds to litigation in court. Therefore, lawyers engaged in the collaborative process must withdraw and parties have to seek new representation for the litigation process.