Interdisciplinary Collaborative Practice offers the opportunity for families going through relationship breakdown to access the right professionals that best suit their needs. Interdisciplinary Collaborative Practice offers a flexible holistic team response to family breakdown. Interdisciplinary Collaborative Practice recognises the need for families to be given the assistance of professionals from differing disciplines including child and Family consultants, psychologists, financial planners or accountants and lawyers, to resolve their dispute without the need for Court.
In 1990, a family lawyer in Minnesota, Stuart Webb, wrote a letter to Minnesota Supreme Court Justice Sandy Keith explaining an idea that he had for using a process to help couples dissolve their marriages in a private and humane way, outside of the judicial system. His vision was that family lawyers would use their negotiating and communication skills to help the parties resolve their matter themselves, without a judge dictating to them how they must live their lives. Webb’s vision was that the lawyers would not represent their clients in contested litigation and instead would use their analytical and reasoned ability to solve problems to generate creative alternatives and a positive context for settlement.
The process has grown from that small, humble beginning with one man’s idea to a process that is now being used around the world. Collaborative Practice is a different dispute resolution process in several ways. Each party hires their own lawyer, who must be specially trained in Collaborative Practice. The only “requirement” of Collaborative Practice is that the lawyers agree in advance they will not represent the clients in contested litigation if the process is terminated or it otherwise breaks down. No one, not the clients or the professionals, can be forced to utilize Collaborative Practice because it is voluntary for both the parties and the professionals. While it is possible that litigation could result if the parties are unable to resolve their differences, the threat of litigation is not used during the Collaborative Process. The result of the disqualification requirement is that the lawyers are dedicated to helping the parties resolve all of their client’s issues.
There are no Court hearings or formal discovery requests in Collaborative Practice. Everything is done outside of the court system. There is no need to take any formal action to obtain discovery because one of the basic tenets of Collaborative Practice is that it is a transparent process and documents and information are voluntarily provided and exchanged. The discussion shifts from a party possibly being obstructive, resulting in a subpoena being issued, to how documents can be obtained and how long it will take to obtain them. The result is a saving of time and money.
The meetings between the parties and the professionals run with an agenda and are usually scheduled for two hours. All the participants know in advance what topics are going to be discussed. Each lawyer will meet with their client to prepare for the meetings. The pre-meeting conference allows the lawyer to educate their client on the issues that will be discussed during the joint meeting and to plan the approach to each issue. The meeting agenda includes how the professionals’ fees will be paid. That is typically a topic to be addressed and resolved during the first meeting. The ultimate responsibility for the professionals’ fees may not be resolved during that meeting, but the source of funds to be used will be discussed. This helps eliminate the arguments over the payment of fees that occurs in so many litigated family law cases.
Minutes are taken at each meeting to create a record for the parties as they proceed with the negotiations and the eventual preparation of a settlement agreement.
The Collaborative Practice process is privileged, except in circumstances of risk of criminal conduct. The purpose of the privilege is to encourage the parties and professionals to be honest and forthright in the negotiations, as in mediation. Either of the parties and any of the professionals can invoke the privilege to preclude something that was said during the Collaborative Practice process from being disclosed to a third party, such as in subsequent contested litigation.
In many litigated family cases, emotional issues, anger, and disputes over parenting styles can occupy a lot of lawyer’s time and energy and cost the parties a lot of money. The presence of a neutral family relationship consultant in the process enables those issues to be addressed quickly and with an expert who is familiar with the family. Although the family relationship consultant will not provide therapy to the parties, that professional will use his or her skills to discuss the emotional or parenting issues with the parties to help them resolve their differences. Although one could say that an additional professional will add to the overall cost of the process, the presence of a family relationship consultant usually saves the parties money by addressing the underlying emotional issues early before they grow and interfere with the parties’ ability to negotiate with each other.
Joint meetings of the parties and professionals take place in the same room with everyone sitting around a table. This is not obligatory and meetings can be structured to create a safe environment if there is a threat to a party’s well-being, such as when there has been a history of family violence or other coercive behaviour between the parties. During the joint meetings, the professionals model appropriate behaviour for the parties. Even though the differences between the parties may be significant and there may be differences in personalities and parenting styles that may never be fully resolved, that does not mean that the parties cannot learn how to resolve their differences. The professionals model to the parties that differences can be respectfully resolved. The goal is to teach the parties to resolve their own differences so they do not have to go to court in the future to ask a judge to resolve their differences for them.
Collaborative Practice is private. No one other than the parties and professionals know what is occurring during the process. Most Collaborative Practice matters do not involve anything being filed in court until after the parties reached a settlement agreement and seek a consent order made by the court. The public and the media do not even know that the parties are involved in a family law dispute, and nothing will be made public. Instead of a family laying out their dirty laundry for the public to see, the issues are kept private.
Professionals need to be trained because the team of professionals think, act, and even talk differently from how they would in a litigated family law case. The concept of using an interdisciplinary team of professionals to help a couple resolve their differences requires that the professionals develop skills to work together with the common goal of helping the clients respectfully and maturely resolve their differences.
The professionals used in Collaborative Practice are:
1) Lawyers: Each party retains their own lawyer. Unlike a typical litigated family matter, the lawyers do not work against each other but rather they work as a team to help the clients identify and resolve all issues. The reality is that family cases do not have a winner or a loser, unlike most civil and criminal cases. The goal should be to create the best possible future for the family, in often difficult financial and emotional circumstances. Parents should have a healthy relationship with each other which benefits their children.
2) Family Relationship Consultants: A family relationship consultant is usually part of the team of professionals in Collaborative Practice cases as a facilitator of the process. In the model used in Australia a family relationship consultant is used to help the parties deal with the emotional aspects of the transition of their relationship, and, when there are children involved, the family relationship consultant helps the parents resolve time sharing and parenting issues. The goal is not to be focused on what each parent wants, but on helping the parents co-parent and communicate well with each other, consistently focusing on the best interests of their children. The family relationship consultant and the lawyers help the parties identify their short-term and long-term goals, and the parties are reminded of their goals throughout the process.
Sometimes, a child specialist is used when there are difficult issues involving a child and the parents cannot resolve their differences without the assistance of a professional who is dedicated to promoting the best interests of the children, enabling the children’s voice to be heard. The family relationship consultant does not provide any therapy to the couple. In fact, if the family relationship consultant feels that a party would benefit from individual therapy, such as when there is a history of substance abuse or a diagnosed mental disorder, the family relationship consultant may refer that party to an outside therapist.
3) Neutral Financial Professional: A neutral financial professional, usually an accountant or a financial planner, can be brought into the Collaborative process. That person will help the parties gather the information needed to understand the family’s financial situation and will help the parties decide how to divide their marital assets and liabilities and resolve child support and maintenance issues. The neutral financial professional does not tell the parties how they must divide their marital estate or how much support should be paid. Rather, that professional gathers information and presents it to the parties and their lawyers for the parties to use as tools in the negotiation process.
4) Other Professionals: The parties may decide to utilize the services of other specialized professionals, such as property valuers and commercial lawyers. Just as with any other professional, the parties are not bound by what the experts tell them. They use whatever information and opinions the experts give them as tools in their negotiations. A big difference between Collaborative Practice and traditional litigation is that only neutral experts are used in Collaborative Practice. The parties, therefore, do not incur the expense of having opposing experts.
Using professionals as a team to help the parties resolve their matter is a different way to practice law for most lawyers. While the lawyers are still advocates for their clients, the lawyers do not act as adversaries. The professionals model behaviour for the parties to demonstrate that even if there are differences in opinions, that does not mean that the differences cannot be respectfully resolved.