What is Collaborative Practice?
Collaborative practice offers a fresh and dignified approach to resolving the issues that arise out of relationship breakdown. In a collaborative process, the clients and their lawyers agree to work together to find a fair solution to whatever financial or child-related issues need to be addressed without involving the court.
A collaborative approach allows for a greater degree of co-operation between a range of professionals involved in helping families. Clients involved in a collaborative process will have access to the skills of child specialists, counsellors, accountants and financial advisers who can bring their expertise to the process when necessary, thereby freeing up the lawyers to concentrate on helping their clients in the negotiations and focusing upon shaping a fair settlement.
Collaborative family law has been practiced in the USA and Canada since the early 1990s and more recently in UK, Ireland and Wales.
It is now recognised as a successful means of Alternative Dispute Resolution.
What does Collaborative Practice involve?
- You and your partner will each retain a specialist family lawyer to advise you throughout the process.
- Your lawyer will discuss with you in your introductory meeting or telephone call whether your case is suitable for the collaborative process.
- You, your partner and your lawyers will all sign a Participation Agreement setting out the ground rules for the collaborative process and stipulating that if either client commences court proceedings, both collaborative lawyers will be disqualified from representing either client.
- Underpinning the collaborative process is an understanding that you and your partner, (and your respective lawyers), will act in good faith, be open and honest in your dealings with one another and respect the fact that different views will need to be expressed to achieve a fair settlement.
- You may appoint a Coach to facilitate communications and participate in meetings.
- The majority of the negotiations will take place at “4 or 5 way” face-to-face meetings between you, your partner, the coach and the lawyers. Correspondence between lawyers is kept to a minimum. By being present throughout the negotiations, you and your partner retain control, the scope for misunderstandings is reduced and you will be assisted in communicating with each other in a non-confrontational way, which is particularly important if you are parenting children together.
- The meetings are minuted and action points for future meetings agreed. Where appropriate, you will be encouraged to draw on the skills of other specialist advisers, such as accountants to assist with financial disclosure, or child counsellors to discuss an issue which may have arisen in relation to the care of your children.
- Once a settlement is reached, the lawyers will draw up a Settlement Agreement which will usually be submitted to the court for approval and made into a consent order.
What about confidentiality?
What happens if my partner/spouse fails to provide a full and frank financial disclosure?
Why can't we go to court if we use the collaborative process
The reason that collaborative law has been successful in other jurisdictions is that the lawyers are disqualified from acting for the client should collaboration fail. A disqualification agreement underlines the fact that all the parties are attempting to achieve settlement without threatening or being subject to the threat of court proceedings when things become difficult.
By agreeing at the outset not to go to court, you, your partner and the lawyers can be encouraged to reach creative settlements, (of course having regard to the legal position), but having you and your family’s particular interests at the forefront of any settlement proposals.
Is my case suitable for the collaborative process?
Collaborative practice is not for everyone.
It will be of interest if the following are important to you:
- you want a dignified, non-aggressive resolution of the issues;
- you and your partner have children and wish to reach a resolution by agreement with the children’s needs and interests at the forefront;
- you do not wish to incur the costs and animosity generated by court litigation;
- you value retaining control over decisions about restructuring your financial arrangements or arrangements in relation to the children, but with advice from experts;
- you do not wish to hand over decision making either to your lawyer or to a judge;
- you need the assistance of a lawyer to help you negotiate in face to face meetings.
Collaborative practice will not be the right option for you if:
- your main objective is to “seek revenge” on your partner;
- you are looking for a “soft option”;
- you think that the process will allow you to “out-manoeuvre” your partner;
- you are hoping to get away with giving less than a full and frank financial disclosure!
How much will it cost?
As with the conventional legal process, different lawyers have different charging rates. The lawyer you instruct will explain to you the basis of their charging structure and will go through their firm’s terms of business with you. As long as you and your partner act in good faith, provide the information requested of you within the timescales agreed and cooperate in the process, the collaborative process will inevitably be quicker and cheaper than the traditional, court based process.
The issue of how the costs of collaborative process are to be met can be addressed at the first meeting. Unless there is an agreement to the contrary however, you and your partner will each be responsible for your own solicitor’s costs and will be invoiced monthly so that you receive a regular update as to the costs position.
How can we get a collaborative case started?
Other solicitors in Sydney and in other areas also offer collaborative family law as a part of their family law services. It is essential that both parties have collaboratively trained family lawyers. Most collaborative family lawyers (and other professionals) belong to practice groups.
If you think that your partner may be interested in trying collaborative family law as a way of resolving your dispute, Susan can write to your partner suggesting collaborative family law and send him/her a brochure, or you can discuss this with your partner directly.
Susan Parker is a member of Central Sydney Collaborative Forum practice group. Fellow members are listed on the website: www.sydneycollablaw.com.au
The family law solicitors in New South Wales who offer collaborative family law as part of their services are listed on the website: www.collabprofessionalsnsw.org.au
Further information about the Collaborative process can be found on: