Collaborative practice is a better approach to conflict resolution. I set out in this posting to tell you about
- what collaborative practice is;
- how collaborative practice works;
- when collaborative practice works;
- why collaborative practice works.
What is Collaborative Practice?
Collaborative practice is a dispute resolution process where clients and their lawyers are committed to seeking a principled, negotiated resolution of a dispute without the use of adversarial techniques or litigation.
Cooperative practices replace adversarial techniques and litigation
Collaborative lawyers must advocate for their clients' interests as all lawyers must but there are important differences in how collaborative lawyers interpret their ethical duties compared to how a gladiatorial litigator might see their duty.
- Collaborative lawyers do not agree to serve as their client’s attack dogs.
- Collaborative lawyers take a different view of the duty of zealous advocacy to that of a gladiatorial litigator.
- The collaborative lawyer will work diligently to help the client achieve his or her goals but collaborative lawyers don't adopt the role of a gun for hire.
Helping the client reflect carefully about goals and priorities is a central part of the collaborative lawyers work. In their capacity as wise counsellors and engaged moral agents, collaborative lawyers raise with their clients questions like these:
- how will achieving this goal make life better in the future after the divorce has finished
- how will achieving this goal affect the long-term and immediate interests of your children
- how will your extended family and friends be affected if you proceed in this manner
- what is the likelihood that you will look back upon this decision years from now with a sense of satisfaction about how you conducted yourself
Collaborative lawyers working from this perspective look ahead to a day when the standard of care for family lawyers will require them to include ethical and moral considerations in their advice and counsel whenever
they handle a divorce collaboratively or otherwise because of the predictable collateral damage to clients and those they care most about when these dimensions of competent family Law advocacy are overlooked or seen as optional.
Parties use interest based negotiation to take into account the goals and interests of all parties.
Collaborative lawyers are trained and committed to interest-based negotiation. Collaborative lawyers work together using interest-based negotiation techniques and teach their clients about interest-based negotiation. Collaborative lawyers will help their clients reframe conversations in terms of underlying interests rather than fixed positions.
The parties actively participate in all negotiations necessary for resolution.
During interest-based negotiations collaborative lawyers assist their clients to identify the issues in dispute, evaluate all the options and negotiate towards an agreement. The structure of joint sessions is to have clients speak directly with each other as much as possible; to express concerns and solve their own problems.
Clients are fully supported in the process by their lawyers and other professionals
Unlike in mediation in the collaborative process clients have with them their lawyer providing advice and support during the process. When agreement is arrived at by the parties their lawyers are able to work together to accurately record the agreement that has been reached.
Lawyers are disqualified from litigation
The commitment to working collaboratively is reflected in an agreement between both lawyers and their respective clients that, should settlement efforts break down, the lawyers will withdraw and not participate in actual court proceedings. Unlike any other kind of family law representation, the risk of failure is distributed to the lawyers as well as to the clients in collaborative practice. When lawyers think differently, they behave differently and counsel their clients differently.
Also Read: Collaborative Practice: A Safe Way To Divorce
A core element of the written collaboration agreement is that the process continues only as long as no one threatens or pursues litigation as a means of conducting negotiations. The parties retain the right to go to
court in a collaborative process, but the collaborative model makes it clear that doing so constitutes the end of the creative process, not the continuation of it.
Creative options are not limited to what a court can order are explored
Clients can develop options that are not restricted by a legal framework. There are often options available that a court would not impose but that clients embrace.
No party can take advantage of any mistake of the other
All participants in the collaborative process must act in good faith. This includes full voluntary disclosure of all relevant facts, good-faith attention to meeting the legitimate needs of all parties to the extent feasible to do so, maintaining the highest fiduciary duties to the other party during the negotiation process, correcting errors and mistakes rather than taking advantage of them.
Cooperative approach amongst lawyers and professionals
Collaborative practitioners are committed to and trained in the belief that all participants in the process should be treated with respect. Collaborative practitioners are dedicated to a client centred approach with respectful open communication. Practitioners work together and develop relationships of trust in practice groups
Stu Webb’s Story
Stu Webb a sole family law practitioner in Minneapolis is regarded as the father of collaborative practice. In 1990 Stu Webb started practising collaboratively and persuaded other lawyers in his area to join him. Stu Webb had become frustrated with the traditional approach of litigation and recognised the damage caused by the adversarial system to families and realised there had to be a better way.
Around the world
- Collaborative Practice has spread throughout the United States, Canada, UK, Australia and Europe over the past 20 years.
- Collaborative Practice commenced in South Australia in early 2008. There are now approximately 30 trained lawyers, 3 Financial planners and one Child and family specialist in SA. There is an active practice group which meets monthly supported by the Law Society of SA