Brief history
Collaborative Law was first developed in 1990 by Stuart Webb, a lawyer from Minnesota as a “settlement only” process for family law representation. Following its introduction, the United States, Canada, Australia, and the United Kingdom promptly recognised the importance of collaborative law within that decade, creating a ripple effect for other jurisdictions to consider its importance.
The underlying model is to avoid litigation and to represent clients and facilitate a participatory negotiation process for the purpose of achieving creative settlements. If this was unsuccessful, clients would then be referred to litigation counsels and the collaborative lawyers would need to withdraw from the matter.
Following the Chief Justice Reforms in 2010 and guided by the Practice Direction 15.10 ‘Family Mediation’, collaborative law has gained traction in Hong Kong and led to establishment of the Hong Kong Collaborative Practice Group in 2010. At Withers Hong Kong, three of our family partners, Anisha Ramanathan, Billy Ko and Samantha Gershon are collaboratively trained.
What is collaborative law?
The collaborative law process is a hybrid of litigation and mediation. It is a voluntary process in which the separating couple and their respective lawyers (who are collaboratively trained) hold four-way meetings to amicably discuss issues involved. Other collaborative professionals like child psychologists or accountants may be engaged to assist with discussions when needed.
In most litigious divorce cases, the parties contend over issues ranging from particulars of the divorce suit, distrust in one party’s financial disclosure, and time with the children through concerns over which party has custody, care and control of the children; all of which can be emotionally and financially draining to either party and deter them from focusing on reaching an amicable solution. To avoid this, both parties would enter into a Participation Agreement, binding them to exchange and disclose information in a full and frank manner. Additionally, the Participation Agreement binds both parties to not file a petition for divorce until they have truly exhausted all options during the collaborative law process. Should the parties be unsuccessful in reaching a settlement, the collaborative lawyers would need to be withdrawn from the matter. Oppositely, in the event of failing to reach a settlement in mediation, the parties would not need to withdraw their respective lawyers from the proceedings.
At a time when emotions can be overwhelming, it is crucial for parties to keep an open mind during the process. By burying the adversarial approach, the easier it is for parties to foster a less confrontational environment and work towards reaching an amicable solution not only for the benefit of themselves but their family too.
Recognising collaborative law in Hong Kong
In S v P [2008] 2 FLR 2040, the UK family court gave formal recognition to agreements achieved by the collaborative law process and approved the use of the ‘urgent without notice’ applications list. Using this alternative route of dispute resolution can expedite the process of reaching a resolution, thereby encouraging parties to reach a resolution in a civilised and sensible manner.
Practice Direction 15.13 ‘Children’s Dispute Resolution Pilot Scheme’ indicates the court’s willingness for parties to engage in mediation to resolve children’s disputes by considering their involvement in the process. Although it may appear troubling to the children, their involvement in these discussions is paramount in protecting their welfare without relying on the Court, Social Welfare Officers, or other relevant parties. In litigation, children can be put in the difficult position of needing to choose between their parents and take sides which could potentially heighten the disputes of custody, care and control. Instead, involving the children could mean parents asking for comments from the children’s teachers, psychologists, or family doctor to weigh in on what would be beneficial for them (depending on their age, the child can be directly involved), which can help facilitate discussions in other areas like financial maintenance. This can only be achieved due to the openness of collaborative law.
While collaborative law is gaining traction in Hong Kong, its full potential has yet to be realised. Continued efforts to raise awareness, educate legal professionals, and promote its benefits will be key in expanding its application and ensuring its place as a mainstream dispute resolution option in Hong Kong’s legal landscape.
Key benefits
| A summary of the key benefits of the collaborative law process | |
| No Neutral Third Party | In mediation or arbitration, a neutral third party is usually engaged, but in a collaborative process it is unnecessary for such engagement, saving the costs for the parties. |
| Collaboration | The process is non-adversarial and non-aggressive, which fosters an environment for exchange. Through collaboration, the parties can reach a win-win conciliatory solution. |
| Transparency | Parties are bound by their duty to make full and frank disclosure of their financial circumstances. |
| Control | The parties have full control over the process such as the pace (i.e., setting a mutually agreed timetable), decisions over financial arrangements and those in relation to children, involving other family members for perspective. |
| Confidentiality | The entire process is confidential among the participants and parties’ respective legal representation. |
| Time and Costs | The avoidance of litigation means parties are not subject to high costs, time-consuming, stressful, and uncertain nature of court proceedings. |
For further information, please contact:
Anisha Ramanathan, Partner, Withersworldwide
anisha.ramanathan@withersworldwide.com
