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Collaborative Law
Collaborative Law History
Collaborative Process
Hallmarks of Collaboration
Advantages of Collaborative Law
Core Elements
Compatible Areas of Law
Will it work for me?
Collaboration vs. Litigation
Collaborative Law

Collaborative Law

Too often disputes become declarations of war. We have seen the damage to families and relationships, to dignity, self-esteem and to wellbeing that litigation can cause. We recommend Collaborative Practice as the most appropriate dispute resolution process.

Collaborative Law is a process of dispute resolution in which clients and their lawyers commit to meet and negotiate their dispute without the threat of Court. In fact if either party wants to go to Court, both lawyers are disqualified from acting. This means that the lawyers acting in a collaborative matter are 100% committed to negotiating a settlement. The negotiations are conducted in good faith, and the parties are set up so that they maintain the best chance of being able to co-parent, work together or have a reasonable and respectful relationship into the future. In a Collaborative case, the parties:

  • Are each represented by lawyers trained in collaborative negotiation
  • Agree to exchange information in an open and cooperative manner
  • Negotiate in “four-way meetings” in which both the parties and lawyers participate
  • Hire experts jointly if experts are needed – experts may include psychologists, accountants or another professional
  • Promise to take a reasoned stand on every issue and to negotiate in good faith
  • Don’t take unilateral action, i.e. involving one side or party only
  • Don’t exchange provocative correspondence
  • Work hard to make sure that they maintain a relationship that is workable for the future.

Useful links:

Collaborative Law History

Collaborative Law History

Collaborative Law was started by a divorce lawyer in Minnesota by the name of Stu Webb approximately 20 years ago. He had been going through the stress and distress of family law litigation for about 30 years and had reached the point where he was ready to pack it in. He felt that there had to be a better way for people to deal with these very important issues in their lives instead of going to court. So he spoke to a few of his colleagues and a judge and they started to work out a process.

The collaborative process is voluntary and confidential. All of the parties enter into it committed to engage in principled negotiation with a view to settling the dispute without going to court. The lawyers’ role is that of legal adviser and of ally to their clients. They will facilitate and guide the negotiations while the clients themselves conduct the negotiations.

A Participation Agreement which sets out the rules governing the process and the obligations of the parties is signed by the clients, the lawyers and any experts. Collaborative Practices has spread exponentially throughout the United States, Canada, UK, Australia and Europe since 1990.

The International Academy of Collaborative Professionals(IACP) is an international interdisciplinary organisation promoting collaborative practice around the world. There is a wealth of information available on that site for those interested in further researching this exciting development to dispute resolution.

Collaborative Process

Collaborative Process

The lawyers actually contract with the clients that if they are not able to resolve the dispute through negotiation, then they must disqualify themselves. This is one of the central principals of Collaborative Practice.

Similar rules affect the experts who are also part of the settlement team. Neither the lawyers nor the experts can be called to give evidence in Court of what transpired through the Collaborative Process.

The clients are focused on settling their dispute and are therefore willing and committed to entering into good faith negotiation with the other party. In fact, if the lawyers become aware that the parties or either of them are not being frank and honest, are withholding information or have some other “agenda” then the lawyers are required to terminate the process and cannot act further for the parties.

Lawyers acting in Collaborative cases find that removing the possibility of going to Court for the parties results in them directing all their energies and expertise to finding an acceptable solution to the dispute, and takes away the likelihood of strategic and tactical manouvering taking place. This helps to ensure that open and honest communication is promoted as the highest ideal.

In theory any matter that can be litigated can be resolved through the Collaborative Process. By way of example, disputes in the areas of family law, children’s issues, defacto and domestic partners issues, workplace and industrial relations, disputes, disputes between partners, directors or directors and shareholders, franchisees and franchisors, lessors and lessees are all well suited to the Collaborative Process. The list goes on and on.

Hallmarks of Collaboration

Hallmarks of Collaborative Law

  • A shared commitment to proceed honestly, respectfully and in good faith;
  • Avoidance of litigation or the threat of litigation;
  • Active participation by clients including gathering and sharing of information, identification of interests and concerns etc;
  • Identification of goals and individual interests;
  • Joint retention of any additional experts needed in the process;
  • A commitment to voluntary disclosure of all facts and information material to the resolution of issues;
  • No game playing, strategic manouvering, bullying, provocative or unilateral actions
Advantages of Collaborative Law

 Advantages of Collaborative Law

  • All involved are committed to not exacerbating the conflict;
  • The professionals involved have undertaken the necessary training to help clients identify interests and manage the dispute by way of interest based negotiations
  • Interdisciplinary Collaborative Practice may involve as necessary other professionals including mental health professionals as conflict coaches, child specialists where required, financial specialists including accountants etc
  • Increased likelihood of preservation of relationships (family,personal, business, etc)
  • Minimisation of hostility and conflict
  • Clients retain control over the dispute resolution process and eventual outcomes – the parties are the decision makers not the judge
  • Maximum flexibility to explore creative solutions to fit the individual circumstances
  • Maximises privacy
  • Potential for cost savings
  • A potential for improvement of clients communication, negotiation and problem solving skills which may assist to avoid or minimise future conflict
  • Puts children’s needs first
  • Concentrates on maintaining an amicable relationship between disputing parties
  • Provides a fast and fair outcome for both parties
  • A team of professionals including counsellors help you deal with the emotional aspect of your dispute as well as the legal and financial issues
  • Avoids the emotional and financial stress associated with a traditonal adversarial process and drawn-out legal processes
  • By keeping your dispute out of court, your privacy, dignity and reputation are protected.
Core Elements

Core Elements

  • An agreement to negotiate a mutually acceptable settlement without going to court to resolve disputes
  • Honest and good faith communication and exchange of information
  • A goal of creating shared solutions that take into account the interests of all parties
  • Withdrawal of all professionals (including lawyers) if any party chooses to go to court
  • A written commitment by way of binding agreement between the parties and their lawyers to the above before engaging in the process.
Compatible Areas of Law

Compatible Areas of Law

Whilst Collaborative Practice originated in the context of Family Law cases its application has expanded in other civil law areas such as employment, wills, trusts and estates, building disputes, lease disputes, negligence, and business law. The core elements of Collaborative Practice remain the same in all areas of law.

Business law

Almost all court cases settle. Collaborative practitioners are committed to the intentional pursuit of settlement of disputes. Collaborative lawyers build settlements that work, instead of accepting settlements on the doorstep of the Court as a by-product of a litigation process that won’t go forward and is costly in time, money, stress and energy. . In resolving business disputes, Collaborative Law works to:

  • Reduce Costs: Turn off open-ended litigation expenses
  • Empower the Clients: Clients keep control and participate fully in crafting the result
  • Meet the Pressure of Time: The solution is needed NOW! in today’s business schedule
  • Keep it Private: Confidentiality is kept
  • Maintain Relationships: Is a continuing relationship desired or required? Collaborative Law can preserve valued relationships
  • Reduce Stress, Distraction and Lost Opportunity Costs: Collaborative Law works to reduce these very real costs of a business dispute
  • Achieve the Best Possible Outcomes: Fully explore and develop “win-win” and creative solutions

The Collaborative Law process is appropriate for most disputes.

Family Law

Family Law is especially well suited to benefit from the collaborative process. No one knows the family and its needs and strengths better than the people involved. The collaborative divorce process encourages the parties to work together to resolve family disputes. The parties are able to explore solutions that serve the best interests of themselves and, in many cases, the children involved. Often these solutions are more creative and better meet the needs of the parties than anything the Court is able to dictate given the limited time the parties spend before a Judge and the limited resources of the Court. The adversarial process inflames the emotional controversy and distracts the parties from their efforts to continue on with their lives. Collaborative lawyers can help clients negotiate a collaborative divorce, by keeping the parties focused on resolving the issues in the most productive fashion for the family while still having an advocate to help navigate the difficult process of divorce or other family disputes. Collaborative law works to:

  • Reduce Costs: Turn off open-ended litigation expenses
  • Empower the Clients: Clients keep control and participate fully in crafting the result
  • Meet the Pressure of Time: The parties determine the timeframe, not the Court schedule
  • Keep it Private: Confidentiality is kept
  • Maintain Relationships: Collaborative law works to preserve relationships beyond divorce. Communications are conducted respectfully.
  • Child focus: The interests of the children are promoted as a priority
  • Reduce Stress, Distraction and Lost Opportunity Costs: Collaborative Law works to reduce these very real costs of a dispute
  • Achieve the Best Possible Outcomes: Fully explore and develop “win-win” and creative solutions

Employment law

Collaborative law can address the human dimensions of an employment law dispute and produce creative, win-win solutions that cannot be obtained in court. Employment Law disputes ranging from employment termination to discrimination to disabilities issues present opportunities for successful collaborative negotiation. These cases can take years to litigate, with enormous impact in the lives of employees and a substantial drain on the time and resources of the employer. Often the employer is represented initially by an in-house lawyer, while the employee may be initially unrepresented. If the employee hires a collaborative lawyer and if the parties enter into a collaborative law agreement, they can avoid the publicity associated with litigation (which can be harmful for both sides), not to mention the cost and delay. Both sides can then focus on their underlying interests, instead of focusing on litigation arguments, which tend to inflame the emotional aspects of the dispute and harden the positions of the parties.

Wills and Estates

Wills and Estate disputes frequently benefit from a collaborative approach. The parties generally know one another, and are often members of the same family. Litigation is likely to damage the ongoing relationships, while a collaborative approach provides an opportunity to build those relationships. The law and courts encourage compromise of will and estate disputes, and permit compromise of estate planning documents to give effect to the testator’s intent. Collaborative lawyers, freed from the need to engage in litigation posturing, can devote their full attention to finding a solution that achieves the interests of the parties while respecting the wishes of the deceased. Anyone who engages in estate planning is likely to want to avoid the loss of control, expense, delay and publicity inherent in litigation.

Will it work for me?

Will Collaboration Work for Me?

If these values are important to you, Collaborative Practice is likely to be a workable option for you:

  • I want to maintain the tone of respect, even when we disagree
  • I want to prioritize the needs of any children involved
  • The needs of all parties require equal consideration, and I will listen objectively
  • I believe that working creatively and cooperatively solves issues
  • It is important to reach beyond today’s issues and conflict (regardless of any anger, frustration or pain I may be experiencing) to plan for the future
  • I can behave ethically toward all parties. I choose to maintain control of the dispute resolution process with the other party(s), and not relegate it to the courts.
Collaboration vs. Litigation
 COLLABORATIVELITIGATION
 The parties control the process and make final decisionsThe Judge controls the process and makes the final decisions
Degree of AdversityThe parties agree to negotiate in good faith and to be open, honest and respectful.The Court process is based on the adversarial system.
CostCosts are manageable, usually less expensive than litigation. Use of joint experts who report verbally at meetings rather than expensive written reports is a significant cost saving.Costs are unpredictable and can escalate rapidly. Appeal processes can consume significant costs. Each party frequently has their own expert and the cost of reports is significant.
TimetableThe parties create the timetableThe Court Rules and/or the Judge sets the timetable. There are often delays due to overburdened Court system. Frequently even after a trial there can be significant delays in Judgments being handed down. If a party appeals that adds to the delay.
Use of Outside ExpertsJointly retained specialists provided information and guidance to help parties develop informed and mutually beneficial solutions. Specialists can attend meetings and the parties have the opportunity to discuss findings.Separate experts are hired to support a litigants position.,Sometimes the Court will Order a single expert however due to the distrust between the parties it is frequently the case that each party will then secure their own separate expert to comment upon the findings of the joint expert.
Involvement of LawyersCollaborative Lawyers work toward a mutually created settlement. 100% of their efforts are directed toward finding a solution.Lawyers fight to win on behalf of their client. In many cases someone wins at the expense of the other party (there is frequently fallout or “payback” as a result), but sometimes neither party is happy with the outcome.
PrivacyThe process, conversations and negotiations are private.The dispute becomes a matter of public record and sometimes media attention.
Facilitation of CommunicationA team of collaborative specialists educate and assist the parties on how to efficiently communicate with each other. Appropriate and effective communication is modelled.No process is designed to facilitate communication. Frequently such damage is done by the process itself that communication post litigation is impossible.
Voluntary vs. MandatoryVoluntaryMandatory if no agreement
Lines of CommunicationThe parties communicate directly with the assistance of members of their teamThe parties communication and negotiation is entirely through their Lawyers. Delay and expense are inevitable.
Court InvolvementOutside Court.Court-based
Choice of SolutionsThe parties can choose solutions that suit their needs.Judges are limited in their choice of solutions by outcomes that are governed by legislation and precedent.

Free Collaborative Law Services Info Sheet

A brief PDF you can download outlining our Collaborative Law Services