Collaborative law is a relatively new concept used to resolve legal disputes. Collaborative lawyers are qualified lawyers with training and experience in dispute resolution and facilitation processes.
Collaborative law is where the parties to a dispute and their lawyers sign a Participation Agreement in which they agree to conduct confidential and transparent negotiations to resolve their matter without turning to litigation. Generally, the parties will meet several times to work towards a settlement.
The parties must agree not to threaten litigation and the lawyers must not advise the parties to start court proceedings. If an application is made to commence proceedings in a court or tribunal the agreement is terminated and both lawyers must discontinue representing their clients.
Collaborative law and family matters
Collaborative law can be used for a range of legal matters including disputes between businesses, neighbours and in family law.
The process is particularly suited to family law matters as the conciliatory approach has potential to preserve or protect the relationship between the parties. Obviously, this is beneficial where children are concerned, given that the parents will need to have ongoing contact and discussions regarding the welfare and care of their children.
An overriding benefit of the Participation Agreement is that the parties are making a commitment to resolve the dispute without litigation.
The parties ‘steer’ their own matter and timeframe rather than have directions and hearing dates set by a court or tribunal. This has the potential to significantly minimise cost and delay, and of course, the stress and anxiety of being involved in court proceedings.
Clients and their lawyers set the agenda for each meeting and the lawyers liaise with each other regarding the agreed procedural aspects for running the meetings.
By giving the parties collective control over how their matter progresses, settlements may be reached which are less restrictive than what might be ordered by a court. Parties are not confined to technical legal issues and can therefore agree on more flexible resolutions that include non-legal matters.
Because collaborative law is non-adversarial, there is no winner or loser. This allows the parties to maintain dignity and respect for each other.
Although each party must give full disclosure of facts relating to the issues in dispute, the discussions and meetings are family-focused with a facilitative approach. The parties must involve themselves in a concerted team effort to settle the dispute.
If necessary, the parties can agree to involve an impartial coach or facilitator to assist in reducing conflict or a professional (accountant, valuer, child specialist) to provide an expert opinion.
Collaborative law at a glance
- The professionals involved in a collaborative law arrangement are bound by professional conduct rules and client confidentiality.
- Parties must act in good faith, provide full disclosure and attempt to reach a resolution.
- Apart from financial disclosure, discussion and documentation will be subject to legal privilege which means they cannot be used in court proceedings. Only where a professional has a statutory obligation to make a report (for example where a child is at risk) will confidentiality and privilege be overridden.
- Negotiations are conducted directly between the parties and their lawyers – opinions and ideas are expressed face to face rather than using the lawyer as an intermediary for communication.
- Correspondence between the parties’ lawyers is limited – being replaced by minutes documenting the discussions and decisions made during the meetings.
- Using the collaborative process means that the need for costly technical legal documents that must adhere to the rules of evidence are not needed.
- Once a settlement is negotiated, the agreement will be legally documented for the parties to approve and sign.
- Litigation must not be threatened nor commenced otherwise the agreement will be terminated and the parties will need to find alternate representation. This is a considerable incentive to keep parties focused on the issues in dispute and working towards a resolution.
When might collaborative law not work?
Whilst collaborative law is open to all family matters, it may not be suitable if one or both parties are antagonistic, violent, have a drug or alcohol dependency or have severe psychological disorders. Safety issues and significant trust concerns will also be a barrier to effective negotiations.
The parties must be fully committed and not see the collaborative approach as a way around disclosure obligations.
Collaborative law may not be appropriate for every legal dispute but is certainly worth considering as an alternative way to resolve your family law issues.
Lawyers engaging in the collaborative law process should be suitably trained and committed. If the Participation Agreement is terminated both lawyers may no longer act for the parties who will need to find alternate representation.