The Time For Collaboration Has Come.
Collaborative practice is a way of handling disputes that uses an interest-based negotiation model. It is a non-adversarial dispute resolution process facilitated by lawyers, and where the interdisciplinary team approach is used child and family specialist assist the clients and the lawyers, to resolve the dispute in a supportive environment that addresses the multilayered facets of the dispute with the the objective of achieving an ethical and enduring settlement for clients.
Lawyers throughout Australia with the encouragement of the Commonwealth Attorney General and the Law Council have undertaken collaborative law training. The majority of practitioners who have undergone training are family law practitioners but the process lends itself to all areas of practice where dispute resolution is sought.
Collaborative law is different from mediation in that the clients their lawyers and other specailist team members work together in joint meetings exploring the dispute and its resolution whilst mediation relies upon a neutral third party to facilitate dispute resolution. Practitioners who have engaged in the collaborative approach often comment upon the liberating effect of working with both the parties jointly engaged experts and the other party’s lawyer in good faith and in open and honest dealings working towards the solution of the problem that meets the needs of all parties. In collaborative practice it is the parties who make the decisions and not their lawyers or the court. The parties and the lawyers at the commencement of the collaborative process enter into an agreement that provides the parties cannot use the lawyers with whom they have engaged in the collaborative process to take the matter to court. The effect of this agreement is that during the process parties are precluded from threatening to resort to litigation.
Unlike litigation, the process is directed solely towards problem solving rather than building a case to present to a court to defeat the other party. In litigation the focus is often to pursue perceived rights of one party with little or no consideration of the rights of the other party and the long term effects on each party. Collaborative lawyers often work with collaboratively trained mental health professionals, coaches, child specialists and financial specialists. In collaborative practice when harm is seen the lawyers and where applicable mental health professionals assist the parties to be reflexive and remove the cause of harm. All disputes are stressful but the emotional costs of family law disputes are legend. The benefit of having access to mental health professionals to help parties grapple with the emotional trauma of dispute is obvious. The meetings between parties and their lawyers are used to identify the priorities, goals, needs and interests of the parties. The conduct of the meetings require open and respectful communication, full disclosure, adjournment or the opportunity to break and seek professional help without fear of the other party taking procedural advantage.
The collaborative model promotes the preservation of relationships in spite of a conflict. Collaborative dispute resolution minimises damage to relationships and increases the likelihood of appropriate dispute resolution skills being applied to future issues and disputes between the parties. Besides Family Law this approach is equally important in estate matters, employment issues, partnership and business disputes, franchisor/franchisee matters and all other matters where it is important to the parties to maintain a relationship into the future.
Parties who have engaged in the collaborative process have expressed the view that they appreciate the settlement orientated, creative, private, respectful process it provides without needing to sacrifice the benefits of having their lawyer at their side. Unlike many mediations, parties who adopt the collaborative process will not be left without the benefit of legal advice. Mediators must tell parties they cannot provide legal advice and parties may feel compelled to reach agreement without the benefit of legal advice.
Lawyers who have become disillusioned with the adversarial practice of law can continue to practice law as helping professionals with the knowledge that they will never be called upon to represent their client against the other party in court proceedings. Collaborative law is not just a synonym for friendly negotiations. The inability to resolve an impasse in settlement negotiations by the issue of proceedings encourages collaborative lawyers to work with the parties to find a way through any impasse. Both lawyers and parties are motivated to remain at the negotiating table to resolve the dispute.
In the adversarial model much effort is devoted to painting the position of parties as “good” and “evil”. Parties seek to avoid the disclosure of information they perceive as damaging and much effort is spent searching for information that may harm or damage the other party. Parties make ambit claims expecting that to reach settlement at the court door they will need to reduce the magnitude of that claim. Parties can begin to believe they are entitled to the ambit claims that have been made on their behalf and become unhappy when their expectations are not met.
In the collaborative model the lawyer listens to the client's entire narrative not for the purpose of finding material to harm the other party but rather to help the parties discover common interests and goals, and to take advantage of differing perspectives. In a traditional adversarial matter, the parameters of orders are dictated by the law, whereas in a collaborative outcome the parties can be creative in structuring an agreement that works for them but may not have been something a court would order. All matters which parties think are important may not be relevant or admissible in a court matter, whereas in a collaborative model, their issues can all be explored, leaving them feeling that they have been heard and their issues aired. Clients take part in the negotiating process with their lawyers emphasising the importance of good faith bargaining and the management of conflicts and strong emotions so that clients are empowered to participate actively and effectively in direct negotiations. Also extended discussions, information sharing, options development, and negotiations take place in face-to-face meetings with the parties.
In a collaborative matter the role of the lawyer shifts from litigator to guide and facilitator of negotiations. Instead of measuring success by the size of the outcome on one's own side of the table success is judged by the degree to which both collaborative lawyers succeed in working effectively with both parties in interest based negotiations, in good faith and in a respectful manner, at an appropriate pace, seeking a mutually beneficial and acceptable outcome. The process provides the parties maximum involvement, control and flexibility over their outcome.
Collaborative practice allows lawyers and their clients to search for a resolution that advances the collective good. Collaborative lawyers can justifiably feel proud and satisfied that their efforts at collaborative conflict resolution are an important socially valuable service.