Top divorce lawyers are promoting the use of non-adversarial collaborative law as a practical and confidential method to avoid expensive court cases. But, asks Jon Robins, will it take off?


The recent run of ‘big-money’ divorce cases will have done little to rehabilitate the image of the ball-breaking Rottweiler divorce lawyer in the public consciousness. So it might therefore be a surprise to see a clutch of leading lawyers (whose client list includes such headline-inspiring names as the Parlours, the Millers, the McFarlanes, as well as McCartney and Mills) claiming to be champions of the non-adversarial ‘collaborative law’.



This alternative to more traditional divorce practice arrived on these shores from over the Atlantic four years ago this month, when the first family law practitioners returned from Canada, where they had attended a training course. Those early converts have been evangelical about collaborative law’s potential to ‘revolutionise’ divorce practice, and it is estimated that by the end of the year 1,000 members of the family lawyers’ group Resolution will be qualified ‘collaborative’ lawyers. However, so far, there have been relatively few marital break-ups that have had the benefit of the process. This could be about to change.



This new initiative by the Central London Collaborative Forum (or ‘London celebrity lawyers’, as their press release puts it) will help make the issue more visible. ‘Our launch will hopefully serve to rebut the notion that family lawyers who have historically acted in high-profile and high net-worth cases are wedded to an adversarial approach which can all too often damage families,’ said Jane Simpson, head of family law at Manches, when the new group was launched this month at the Foundling Museum in London.



The forum comprises lawyers from the so-called ‘magic circle’ of London family firms: Addleshaw Goddard, Alexiou Fisher Philipps, Charles Russell, CKFT Solicitors, Clintons, Collyer Bristow, Farrer & Co, Kingsley Napley, and Manches. It is one of many collaborative initiatives around the country, although not everyone is happy about the London firms’ approach. One prominent lawyer complains that the firms have offended the spirit of the movement by arguably ‘promoting themselves rather than the process’.



As Ms Simpson explained, the process is about finding an agreed solution through a series of roundtable meetings, typically between four and eight, where other professionals can be brought in to help the process, such as accountants, pension advisers, therapists and counsellors. During those meetings, financial disclosure and discussions are dealt with in an open fashion or, as Ms Simpson put it, ‘cards are played face up’. It is all about open discussion of objectives rather than negotiations – ‘not something that comes naturally to most of us lawyers’, she added.



One crucial aspect of collaborative law is that parties agree from the outset that they will not drag each other through the courts unless negotiations break down – and then they have to instruct new lawyers. This has been called the ‘Jesus bolt’ (spot the US influence), referring to the piece of metal connecting the rotors of a helicopter to its mast. If you happen to be in one when the bolt comes out, you will only have time to utter a quick ‘Jesus’ before plummeting to certain death – apparently, a prospect on a par with going through the American divorce courts.



That aspect was an idea that Ms Simpson originally thought was ‘barmy’ but has since had a change of heart. ‘I now believe that the requirement to change lawyers before litigating is a powerful tool to encourage both the clients and their lawyers to remain at the negotiating table,’ she said.



The event last week was not just about celebrity endorsement – the judiciary was on hand to lend its support. ‘Collaborative law is a concept and idea; it’s time has come,’ said Mr Justice Coleridge. ‘Indeed, it is long overdue. I am its greatest fan.’ He presided over the Charman case, in which Beverley Charman was awarded a record £48 million in the biggest court-determined divorce award in legal history. (‘Probably Mr and Mrs Charman wouldn’t have taken kindly to the collaborative model, but their family would have certainly benefited,’ noted Ms Simpson).



The judge went on to say that he would ‘force every client to consider and engage in this new process before embarking on the old-fashioned trial by the battle approach… So what is being trailblazed by the Central London Collaborative Forum is obviously right. No right-thinking member of society would want to approach these cases any other way’. He observed that it was ‘a natural development of a culture began by the Solicitors Family Law Association, now Resolution, 25 years ago’.



James Pirrie, a partner at London firm Family Law in Partnership and one of the first four lawyers trained in collaborative law (although his firm is not part of the forum), says that last week’s launch is symptomatic of ‘a sea-change’. In the past, he reckons, the very rich have been little motivated by the fact that collaborative law is cheaper than the more traditional model of divorce. ‘If the resources are very extensive, then even a few percentage shifts in the outcome will more than pay for the litigation process – litigation costs are not prohibitive for these families,’ says Mr Pirrie. ‘It may be cost-effective to take a punt on the outcome of contested litigation because the litigants may “get lucky” and they can afford to lose if they prove not to be.’



He acted for Julia McFarlane, a former City lawyer who was married for 16 years to a senior tax partner at accountancy firm Deloitte & Touche, earning more than £750,000 a year. The couple agreed that she should give up her own high-flying career to raise their three children. The House of Lords agreed with Mrs McFarlane that she was entitled to £250,000 a year for life.



Mr Pirrie points out that, over the last four years, clients have become more concerned about ‘the ethics of the process’. He explains: ‘The launch of this group confirms our experience. What we’re seeing is a situation where clients want to be able to tell their children that they dealt with the other parent fairly and were dealt with fairly by that person. They want to be able to say that when they faced this challenge – one of the biggest that modern life has to throw at us – their values stood up and that they are proud with the way that they dealt with things.’ Mr Pirrie is one of the most experienced collaborative lawyers, with about 30 cases to his name.



Roger Bamber, a partner at East Anglian firm Mills & Reeve and another of the first four, welcomes the latest initiative. He is not surprised that the collaborative approach has failed to take off to a greater degree with the public or lawyers. ‘We are a very conservative profession. It takes a while for something new to bed down,’ he says. He is based in Cambridge, where there is the highest concentration of collaborative lawyers.



Duane Plant set up the Cambridge Family Law Practice with six other lawyers as a result of their experience working with other collaborative lawyers. ‘Some of us got on so well and realised that we had the same ethos in terms of wanting to keep costs down and wanting to help clients sort out their divorce away from the courts and so we decided to practise together,’ he says. The lawyer reckons there are 46 trained collaborative lawyers in the area, and claims his practice advises 20% to 25% of their clients collaboratively. Mr Bamber says ‘about 30% to 40%’ of his clients are advised in this way.



‘When we started this, I was worried that there was going to be a stampede for a service that wasn’t ready and there wouldn’t be enough people skilled up,’ says Mr Pirrie. ‘In a way, we have sacrificed some of the people separating by not pushing our heads far enough above the parapet.’



So does it need a bunch of City lawyers with celebrity clients to come in and kick-start the process? ‘That is exactly what it needs. It needs the right people saying the right things in the press,’ says Mr Bamber. ‘It will happen and I am delighted that the “magic circle” is on board... It is as good for them as it is for collaborative law. They do have an image problem. If you look at the fees, understandably people think that they are just in it for themselves – whereas with collaborative law you are not.’



‘I believe that the image is unfair in many cases – fair in a few,’ says Maggie Rae, a partner at Clintons in London. She acted for Karen Parlour in winning a record £4 million from her husband, the ex-Arsenal footballer Ray Parlour, in a landmark court ruling. ‘Over the years, we have tried hard to come up with less confrontational ways of approaching divorce. The whole of the Resolution philosophy is based upon that.’



Ms Rae explains the value of the recent launch was that ‘it made it plain that collaborative law is suitable for all kinds of cases, however complicated and multi-jurisdictional’, as long as there is a willingness on the part of the parties to utilise the collaborative process. The lawyer has done ‘five or six divorces’ collaboratively. ‘Clients find it very empowering because they are very much in control of the process,’ she says.



James Stewart of Manches in London was another of the first four collaborative lawyers. He has only done eight cases collaboratively, but one concerned an international couple with assets of more than £35 million in what is believed to be the highest-value collaborative case in the UK so far. ‘We’ve seen it in Charman, McFarlane, Parlour, White [as in the landmark 2001 White v White case] – when cases go to the High Court, they tend to lose their anonymity and they were all obliged to air their dirty linen in public. Collaborative law has the advantage of being absolutely confidential and terribly discreet, and that’s why it has taken off in certain areas such as California, where if celebrities go to court, it’s an open court and the press are allowed in. So there’s a great pressure on them to resolve their problems in a confidential way.’



There are other reasons why this approach works for big-money clients. ‘Some clients are so busy that they do not have time to run litigation. A fair proportion of our client base consists of City lawyers and accountants who are juggling lots of balls in the air, such as careers and families. The one ball that they cannot juggle is the management of their divorce proceedings and a collaborative approach is easier to manage.’



Does collaborative law work in cases where people do not have much money? ‘It does work, but the problem is that there is no money available for legal aid,’ says David Emmerson, a partner at south London firm Edwards Duthie who chairs Resolution’s legal aid committee. A Legal Service Commission pilot, scheduled to take place in Cambridge, has yet to materialise despite being flagged up a couple of years ago. It was put on hold then because there were not enough collaborative lawyers. Now there are more than 1,000, surely that would not be a problem? ‘The problem now might be finding a legal aid lawyer,’ he notes dryly.



Mr Emmerson is one of 12 lawyers in a London East and Essex ‘pod’ (as local groups of collaborative lawyers tend to call themselves). It is early stages, he says: ‘I have yet to do a case. At last count, there was only one person who had.’



‘I am definitely keen on it,’ the solicitor continues, ‘because there’s no doubt that going to court is extremely costly and stressful and if there is an opportunity for people to talk sensibly and to have the comfort of a lawyer to advise, then everyone’s a winner.’ One problem he has found is that ‘the people who normally are interested are the ones that are so reasonable with each other that they have half-settled everything before they come to see you anyway’. He adds: ‘The reality is that I can settle cases a lot cheaper without going through the formal collaborative process with clients such as those.’



Mr Stewart agrees that the appeal of collaborative law is not limited to the super-rich. ‘Most couples who go into a divorce want to come out of it with dignity intact,’ he says. ‘That is the great thing about collaborative law – it takes acrimony out of the situation and forces people to engage in a civilised and dignified manner.’



Jon Robins is a freelance journalist



An Internation Perspective



Collaborative law is a US import and a truly international phenomenon. The movement’s greatest achievement to date has been in the small Canadian city, Medicine Hat (population 50,000), where it was introduced in August 2000 and quickly closed down its family court by removing family disputes from the legal system.



Pauline Tesler, a partner in the San Francisco firm of Tesler Sandmann and Fishman, is an acknowledged collaborative pioneer who has trained many UK lawyers. To explain what is wrong with the conventional divorce litigation, she quotes one respected family law judge. ‘If anyone leaves this courtroom happy, I’ve made a dreadful error,’ he is reported to have said.



She believes that many family law practitioners ‘overwhelmingly fail to take any ethical or moral leadership’ in advising clients that there is a way to divorce with ‘dignity and integrity’, and see other therapists, mediators and other professionals as ‘meddlers who compromise our ability to win big for our client’.



‘Not only do many of our clients fear and dislike us, but we fear our clients,’ she says. ‘Small wonder that many family lawyers regret their choice of profession and are leaving the field in unprecedented numbers. Even more troubling are the high drug and alcohol abuse rates for attorneys and their disturbingly high rates of clinical depression.’ These unhappy reasons contributed to the growth of collaborative law as it emerged in the early 1990s.



Its growth has been striking. ‘There is a hunger for this throughout the world,’ says Talia Katz, executive director of the International Academy of Collaborative Professionals. ‘We have doubled in two years – from 1,600 members to 3,000 from 15 different countries.’ How does the collaborative model export to different jurisdictions? ‘There is just one fundamental issue that is the same: two attorneys are involved with two clients and there is always the provision that, if a case falls out of the collaborative model, it needs to go to litigation. That’s the one thing that is the same wherever you go.’



Sherri Slovin is a collaborative practitioner in Ohio and has trained lawyers in New Zealand, England and Australia. So why has the spread of collaborative law been so successful? ‘My sense is that there are a number of forces intersecting to create an openness to this process at this point in time,’ she says – not least the spread of alternative dispute resolution and clients wanting a ‘good divorce’. ‘We’ve had more than 20 years of divorce as the status quo,’ she adds. ‘Everyone knows someone who is divorced and knows someone who has had a terrible experience. Clients are seeking alternatives.’



‘We talk about wanting to change the way conflict is resolved,’ says Ms Katz. ‘My personal view is that this happens one person at a time. There is something quite extraordinary about being able to sit down around a table with your lawyer, your spouse and your spouse’s lawyers and having a genuine means of conversation.’



It’s easy to see why clients go for Ms Tesler’s line. ‘I say to them: if you would rather give up the right to dance at your daughter's wedding for another £20,000 on the settlement, then there are lawyers down the street who would love to help you and you’ll send their child to university – not yours.’