Increasing delays in the Family Law litigation and high legal costs have led lawyers and their clients to consider an alternate way of resolving family law disputes.
Collaborative Practice places the parties in control of the dispute resolution process through cooperation, respect, conflict minimization and exploration of shared goals, without going to court. It involves confidential and transparent negotiations that take an interest-based approach. It seeks to move away from the win/ lose adversarial mentality, to a process where parties and practitioners are committed to a win/win, future-focused outcome for those involved, without involving the court.
· The parties, their lawyers and other team members, such as financial advisors, valuers and family relationship consultants all sign an agreement agreeing to stay out of court.
· The participants commit to keeping the process honest, respectful and productive on both sides. The ‘duty to give full and frank disclosure’ remains paramount.
· If the collaboration breaks down, the agreement not to litigate is terminated and the parties will find themselves searching for new legal representation.
Most of the work is done in a series of round table meetings and correspondence is kept to a minimum. During the meetings, the parties identify the issues that are important to them and these are put up for discussion. One of the benefits of Collaborative Practice is that it can provide a forum to discuss non-legal issues. Minutes of the meetings are taken and circulated and may include a ‘to-do-list’ of tasks to be completed, or documents exchanged, before the next get together. Once an agreement is reached, the lawyers draft any settlement documents, and, like traditional methods, these can be submitted to the court for approval.
The beauty of the Collaborative Process is that lawyers get to work as part of an interdisciplinary team with financial planners, accountants, valuers, family consultants, family dispute resolution practitioners, family counsellors and psychologists. The focus for all is on finding a mutually acceptable agreement for the family as a whole. The process is confidential with the exception of any of the experts involved having mandatory reporting requirements. There are may benefits to the Collaborative Process:
· Faster resolution;
· Clients are in control of the process setting their own agendas, timeframes and are present at all meetings;
· The cost is generally cheaper if the parties act in good faith;
· The process encourages open communication and information sharing
· Lawyers openly discuss options in the presence of all parties;
· Preservation of the parties’ relationship and assistance with future communications;
· Round table discussions with litigation removed from the equation;
· Increasing delays in the Family Court and high legal costs have led practitioners and clients to consider an alternate way of resolving family law disputes.
‘Collaborative Practice’ allows parties to control the process through cooperation, respect, conflict minimisation and dispute resolution, without going to court. It involves confidential and transparent negotiations that take an interest-based ‘team approach’. Collaborative Practice is not a soft option for lawyers or their clients. It can involve robust and complex negotiations where lawyers are expected to provide their clients with comprehensive legal advice and the preparation, exchange and inquiry into all relevant issues. It embraces interest based negotiation, keeping the focus on the wellbeing of the family and all its members. It allows parties to reach their own outcomes with solutions which are not traditionally considered within the court domain. Parties and their team of professionals must be sufficiently motivated to invest in the process, knowing that if it all falls apart, there may be significant costs involved in obtaining new representation.