Four people are sitting at a conference table. On one side is the husband and his lawyer. On the other side is the wife and her lawyer.
HUSBAND’S LAWYER: We’ll agree to the higher payment if you will agree to shared custody.
WIFE’S LAWYER: My client’s daughter is not for sale.
HUSBAND’S LAWYER: What does that mean?
WIFE’S LAWYER: Shared custody is not in Celia’s best interest. Her father [she glances disdainfully at the husband] has a history of adulterous behaviour.
HUSBAND’S LAWYER: Once again, there was no adultery
WIFE’S LAWYER: I didn’t say adultery, I said adulterous.
HUSBAND’S LAWYER: That’s tricky, even for you, Yvonne.
WIFE’S LAWYER: Speaks to character, as you know .But we’re happy to let the court decide.
HUSBAND’S LAWYER: Of course you are you are. All the better to soak these people.
WIFE’S LAWYER: [sarcastically] Whereas you are Robin Hood .
HUSBAND’S LAWYER: Just stop it.
WIFE’S LAWYER: Sole custody, the higher payment, two visits per week, two hours maximum.
HUSBAND’S LAWYER: My client will not let his daughter down in that way..
WIFE’S LAWYER: He should have thought of that before he went to his ex-girlfriend’s mother’s funeral.
HUSBAND’S LAWYER: A minor offence in the scheme of things and in the eyes of any competent judge.
WIFE’S LAWYER: He lied to his wife’s face.
HUSBAND’S LAWYER: [sarcastically] Yes, he’s the first spouse to ever do that.
WIFE’S LAWYER: The higher payment, plus 30 per cent, shared custody, two thirds to one third in my client’s favour, schedule TBD.
HUSBAND’S LAWYER: That’s outrageous.
It is indeed outrageous. It’s outrageously inaccurate.
I struggle to even begin to explain what is wrong with all of the above. If I attended a negotiation meeting where the other solicitor behaved that aggressively and unprofessionally, I would walk out, taking my client with me.
Child arrangements should never conflated with financial issues. Adultery and adulterous behaviour are the same thing; adulterous behaviour is not a lesser form of infidelity. In any event, it is legally irrelevant in financial and children disputes, (not to mention also no longer a fact that can be cited in support of a divorce application in England and Wales). And we never, ever, ever, ever, say “custody”.
The dialogue above is from the Channel 4 drama Alice and Jack. It is extremely rare to find a drama that depicts a divorce where the writers seem to have bothered to listen to the production’s legal adviser. In Cold Feet, when David was served with a divorce petition, it looked more like a council tax bill than a legal document. The Split (which the BBC claimed was well researched and very realistic) got the law spectacularly wrong in the first five minutes and then kept getting things so wrong that I gave up after watching the first three or four increasingly frustrating episodes. I winced during an episode of EastEnders when a solicitor talked about applying for a “custody order”. Marriage Story featured a scene in court where the parties’ lawyers did nothing but squabble in a way that no judge would ever permit (my review of the film in the Law Society Gazette can be read here).
This cliched nonsense is nothing like the real experience of negotiating financial agreements as part of a divorce.
In reality, when negotiations take place, whether they are in writing or face to face, the lawyers will usually do their utmost to be civil and conciliatory. They are assertive, without being aggressive. Most solicitors who specialise in family law are members of Resolution, which has a Code of Practice committing them to:
- Reduce or manage any conflict and confrontation; for example, by not using inflammatory language.
- Support and encourage families to put the best interests of any children first.
- Act with honesty, integrity and objectivity.
- Help clients understand and manage the potential long-term financial and emotional consequences of decisions.
- Listen to and treat everyone with respect and without judgment.
- Use my experience and knowledge to guide clients through the options available to them.
- Continually develop my knowledge and skills.
- Use the Resolution Guides to Good Practice in my day-to-day work.
The requirements of the code are quite exacting and it can sometime be a challenge for solicitors to abide by the code perfectly, especially in written correspondence. In face to face negotiations, not sticking to the code and behaving like lawyers in TV and films will just cause the negotiations to break down and for the meeting to come to an abrupt end.
The best way to conduct face to face negotiations is to use collaborative lawyers. Many solicitors, barristers and legal executives have done specialist negotiation training with Resolution to enable them to act for clients in collaborative cases. Collaborative law is one of a number of non-court dispute resolution (NCDR) methods, along with mediation, arbitration, Early Neutral Evaluations and private financial dispute resolution appointments.
Collaborative discussions between the parties and their lawyers take place in private, sitting around a table. First names are used. The solicitors do not refer to the parties as “my client” and “your client” (a ridiculously old-fashioned habit regrettably still prevalent among some solicitors, even when not using the collaborative method) and instead we call them by their actual names. Everyone attending the meeting will talk openly and informally with each other. There will be an agenda that we work through to ensure that we cover everything, but everything is otherwise very informal. Tea and biscuits is provided.
Financial disclosure will be agreed in the meetings so that both parties have a clear understanding of each other’s finances. Correspondence between solicitors is kept to a minimum, and instead things are discussed in the meetings. Steps to take, such as getting property valuations or expert pension reports, will be agreed in the meetings, as will questions about the financial documents produced.
Negotiations will then take place in a collaborative and non-confrontational way. The parties will be encouraged not to be positional in their discussions, but instead to work together in a non-adversarial way to find a solution that is right for them and for their children.
Collaborative law has many advantages over court proceedings:
- The collaborative process can be significantly less expensive than court proceedings.
- It can proceed at a speed which is suitable for the parties and will probably be much faster than court proceedings.
- The parties can keep control over the outcome rather than putting it in the hands of the judge.
- The parties can spend time discussing issues which may be important to them, but which a judge might consider trivial and a waste of precious court time. For example, they can spend time discussing issues relating to the contents of the house or arrangements for pets.
- The collaborative process can help to maintain or even enhance a couple’s ability to communicate.
- The parties can come up with more imaginative solutions than the limited range of things that the court has the power to order. They can agree to take into account factors that the court may ignore.
- Experts, such as financial advisers or accountants or family consultants can be invited to take part in the meetings where that helps the parties to reach an agreement.
The parties and their lawyers will enter into a written participation agreement which sets out how the parties and their lawyers are expected to behave. Most importantly, it includes a commitment to not litigate the dispute through the court.
This is designed to bind the process together and to stop it breaking down without a good reason. If the process fails, the parties can still resort to court proceedings to resolve the dispute if necessary, but there is a sting in the tail; they must both find new solicitors as the participation agreement prohibits their collaborative lawyers (and their firms) from conducting litigation between the parties. If an impasse is reached and the parties need an independent third party to decide matters for them, they can jointly appoint a family arbitrator to decide the outcome, and their collaborative solicitors can continue to act for them.
Collaborative law is not suitable in very case. Where there has been domestic violence or abuse, drug or alcohol addiction or mental health problems, it may not be appropriate. However, it is suitable in many cases.
Regrettably, nowhere near enough people use the collaborative process. I have done a large number of cases on a collaborative basis, but it is fair to say that since COVID, collaborative law has declined somewhat. This is a pity, as it has enormous advantages over litigation.
One problem is that there is a very little public awareness of collaborative law. Most people have heard of mediation, even if they don’t really understand what is involved, but very few people have heard of collaborative law.
More family solicitors need to do the collaborative training. Far too often, I find that I advise a client that their case is suitable for collaborative law, only to find that their ex then instructs a solicitor who has not done the training, doesn’t understand collaborative law and probably does not even bother telling them about it.
The Family Court is overwhelmed with cases, so collaborative law needs to be used more often. Litigation is slow, expensive and risky. Since April 2024, the court now expects that couples will have engaged in at least one form of NCDR before resorting to court proceedings, save in cases where limited exemptions apply. Couples who rush to court now risk finding that the court refuses to deal with the application until its satisfied that NCDR has been tried.
Collaborative process is an extremely good way for a couple to find a solution to their dispute, with the assistance of their lawyers, about to how to divide their income and assets following a divorce or separation, and also how to reach an agreement about the arrangements for their children.
I have conducted a large number of cases collaboratively over the years. Even in cases where we do not use the collaborative process, my training as a collaborative lawyer and as a family mediator has improved my negotiation skills. I would never dream of conducting discussions, collaborative or otherwise, in the way that lawyers do in TV and in the movies.
6 July 2026
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