Collaborative Practice

Collaborative Practice

Collaborative Practice is a dispute resolution process wherein the parties and their lawyers commit to avoiding Court. Litigation is financially good for lawyers but financially and otherwise damaging for families. That is why we recommend Collaborative Practice as the most appropriate dispute resolution process.

In Collaborative Practice, both parties with their lawyers negotiate their dispute. If a decision cannot be reached, both parties’ lawyers are disqualified from acting. This ensures that both lawyers acting in a Collaborative matter are 100% committed to negotiating a settlement.

Collaborative Practice was specifically developed to resolve disputes and preserve relationships. This becomes necessary when dealing with family breakdowns involving children, and both parties need to continue a civil relationship in the future in spite of a separation.

In a Collaborative case, the parties:

  • Are each represented by lawyers trained in Collaborative Practice
  • Agree to exchange information in an open and cooperative manner
  • Negotiate in joint meetings in which both the parties and lawyers participate
  • Engage 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.

The History of Collaborative Practice

Collaborative Practice was started by a divorce lawyer, Stu Webb, in Minnesota approximately 30 years ago. Stu had become a war-weary family law litigator. 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.

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.

Collaborative Process

Collaborative lawyers 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 principles 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 during the Collaborative process.

The clients and lawyers are focused on settling the dispute and are therefore willing and committed to entering into good faith negotiations. In fact, if the lawyers become aware that any party or professional is not being frank and honest, is withholding information, or has some other agenda, then the lawyers are required to terminate the process and cannot act further for the parties.

Hallmarks of Collaborative Practice

  • A shared commitment to proceed honestly, respectfully and in good faith
  • Avoidance of litigation or the threat of litigation
  • Active participation by clients including the gathering and sharing of information, and identification of interests and concerns
  • 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 maneuvering, bullying, provocative or unilateral actions

Advantages of Collaborative Practice

  • All involved are committed to not exacerbating the conflict
  • Professionals involved have undertaken the necessary training to help clients identify interests and manage the dispute by way of interest-based negotiations
  • Increased likelihood of preservation of relationships (familial, 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
  • 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 traditional adversarial process and drawn-out legal processes
  • By keeping your dispute out of court, your privacy, dignity and reputation are protected.

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

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 practitioners 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 Practice 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 Practice can preserve valued relationships
  • Reduce Stress, Distraction and Lost Opportunity Costs – Collaborative Practice 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. 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 any children involved. Often these solutions are more creative and better meet the needs of the parties than anything the Court is able to dictate. The adversarial process inflames the emotional controversy and distracts the parties from their efforts to continue on with their lives. Collaborative practitioners can help clients negotiate a Collaborative divorce, by keeping the parties focused on resolving the issues in the most productive fashion for the family. Collaborative Practice 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 time frame, not the Court schedule
  • Keep it Private – Confidentiality is kept
  • Maintain Relationships – Collaborative Practice 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 Practice 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 Practice 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 Practice and if the parties enter into a Collaborative Practice 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 Wills and estate disputes, and permit compromise of estate planning documents to give effect to the testator’s intent. Collaborative practitioners, 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 Collaboration Work for You?

Collaborative Practice is likely to be a workable option if:

  • You want to maintain the tone of respect, even when in disagreements
  • You want to prioritise the needs of any children involved
  • The needs of all parties require equal consideration, and you will listen objectively
  • You 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 you may be experiencing) to plan for the future
  • You can behave ethically towards all parties. You choose to maintain control of the dispute resolution process with the other party(s), and not relegate it to the Courts.
COLLABORATION LITIGATION
The parties control the process and make final decisions The Judge controls the process and makes the final decisions
Degree of Adversity The parties agree to negotiate in good faith and to be open, honest and respectful The Court process is based on the adversarial system
Cost Costs 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
Timetable The parties create the timetable The Court rules and/or the Judge sets the timetable. There are often delays due to the overburdened Court system. Frequently even after a trial there can be significant delays in judgments being handed down. If a party appeals that only adds to the delay
Use of Outside Experts Jointly 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 Lawyers Collaborative Practitioners work towards 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
Privacy The process, conversations and negotiations are private The dispute becomes a matter of public record and sometimes media attention
Facilitation of Communication A 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. Mandatory Voluntary Mandatory if no agreement
Lines of Communication The parties communicate directly with the assistance of members of their team The parties communication and negotiation is entirely through their lawyers. Delay and expense are inevitable
Court Involvement Outside Court Court-based
Choice of Solutions The 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
Collaborative Practice

Collaborative Practice

Collaborative Practice is a dispute resolution process wherein the parties and their lawyers commit to avoiding Court. Litigation is financially good for lawyers but financially and otherwise damaging for families. That is why we recommend Collaborative Practice as the most appropriate dispute resolution process.

In Collaborative Practice, both parties with their lawyers negotiate their dispute. If a decision cannot be reached, both parties’ lawyers are disqualified from acting. This ensures that both lawyers acting in a Collaborative matter are 100% committed to negotiating a settlement.

Collaborative Practice was specifically developed to resolve disputes and preserve relationships. This becomes necessary when dealing with family breakdowns involving children, and both parties need to continue a civil relationship in the future in spite of a separation.

In a Collaborative case, the parties:

  • Are each represented by lawyers trained in Collaborative Practice
  • Agree to exchange information in an open and cooperative manner
  • Negotiate in joint meetings in which both the parties and lawyers participate
  • Engage 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.
History of Collaborative Practice

The History of Collaborative Practice

Collaborative Practice was started by a divorce lawyer, Stu Webb, in Minnesota approximately 30 years ago. Stu had become a war-weary family law litigator. 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.

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.

Collaborative Process

Collaborative Process

Collaborative lawyers 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 principles 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 during the Collaborative process.

The clients and lawyers are focused on settling the dispute and are therefore willing and committed to entering into good faith negotiations. In fact, if the lawyers become aware that any party or professional is not being frank and honest, is withholding information, or has some other agenda, then the lawyers are required to terminate the process and cannot act further for the parties.

Hallmarks of Collaboration

Hallmarks of Collaborative Practice

  • A shared commitment to proceed honestly, respectfully and in good faith
  • Avoidance of litigation or the threat of litigation
  • Active participation by clients including the gathering and sharing of information, and identification of interests and concerns
  • 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 maneuvering, bullying, provocative or unilateral actions
Advantages of Collaborative Practice

Advantages of Collaborative Practice

  • All involved are committed to not exacerbating the conflict
  • Professionals involved have undertaken the necessary training to help clients identify interests and manage the dispute by way of interest-based negotiations
  • Increased likelihood of preservation of relationships (familial, 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
  • 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 traditional 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 practitioners 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 Practice 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 Practice can preserve valued relationships
  • Reduce Stress, Distraction and Lost Opportunity Costs – Collaborative Practice 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. 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 any children involved. Often these solutions are more creative and better meet the needs of the parties than anything the Court is able to dictate. The adversarial process inflames the emotional controversy and distracts the parties from their efforts to continue on with their lives. Collaborative practitioners can help clients negotiate a Collaborative divorce, by keeping the parties focused on resolving the issues in the most productive fashion for the family. Collaborative Practice 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 time frame, not the Court schedule
  • Keep it Private – Confidentiality is kept
  • Maintain Relationships – Collaborative Practice 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 Practice 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 Practice 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 Practice and if the parties enter into a Collaborative Practice 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 Wills and estate disputes, and permit compromise of estate planning documents to give effect to the testator’s intent. Collaborative practitioners, 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 You?

Will Collaboration Work for You?

Collaborative Practice is likely to be a workable option if:

  • You want to maintain the tone of respect, even when in disagreements
  • You want to prioritise the needs of any children involved
  • The needs of all parties require equal consideration, and you will listen objectively
  • You 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 you may be experiencing) to plan for the future
  • You can behave ethically towards all parties. You choose to maintain control of the dispute resolution process with the other party(s), and not relegate it to the Courts.
Collaboration vs. Litigation
COLLABORATION LITIGATION
The parties control the process and make final decisions The Judge controls the process and makes the final decisions
Degree of Adversity The parties agree to negotiate in good faith and to be open, honest and respectful The Court process is based on the adversarial system
Cost Costs 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
Timetable The parties create the timetable The Court rules and/or the Judge sets the timetable. There are often delays due to the overburdened Court system. Frequently even after a trial there can be significant delays in judgments being handed down. If a party appeals that only adds to the delay
Use of Outside Experts Jointly 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 Lawyers Collaborative Practitioners work towards 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
Privacy The process, conversations and negotiations are private The dispute becomes a matter of public record and sometimes media attention
Facilitation of Communication A 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. Mandatory Voluntary Mandatory if no agreement
Lines of Communication The parties communicate directly with the assistance of members of their team The parties communication and negotiation is entirely through their lawyers. Delay and expense are inevitable
Court Involvement Outside Court Court-based
Choice of Solutions The 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

Collaborative Practice

FAQs

Why is Collaborative Practice better?

Too often disputes become declarations of war. We have seen firsthand the damage to families and relationships, dignity, self-esteem, and wellbeing that litigation can cause. We think Collaborative Practice is better because everyone involved is committed to not exacerbating the conflict, by putting children’s needs first, concentrating on maintaining an amicable relationship between disputing parties, and by keeping your dispute out of Court. All of this helps to protect your privacy, dignity and reputation, and results in a better outcome for you.

Why don’t more people use Collaborative Practice?

Collaborative Practice is relatively new in South Australia, and Belperio Clark were the first firm to have Collaborative practitioners trained. There are still many lawyers who do not have the training and qualifications to offer Collaborative as an option to their clients. However, the pool of trained practitioners is growing, and our Bev Clark is regularly conducting training now through the Law Society to ensure that more lawyers are able to offer this service.

We have also found that whilst many clients would like to conduct their matter Collaboratively, particularly those with children, if the other party has already engaged a traditional lawyer then Collaborative Practice is not available to them as both parties must be represented by a Collaborative lawyer. This is to ensure that both lawyers are wholly committed to working toward a negotiated outcome for the family. An important hallmark of Collaborative Practice is the requirement that if the Collaborative process fails and the parties wish to proceed to Court, the lawyers must withdraw – they cannot go to Court for the parties.

This requirement means that the parties in the negotiation can be less guarded and genuinely speak about what is important to them and what is worrying them without fear that the lawyers will use that information against them later in Court. The process is confidential and all professionals are 100% committed to working respectfully to assist the family to find a solution that will keep them out of Court.

Will a Collaborative process cost me more money?

A Collaborative process is more expensive than typical mediation as both parties must have a Collaborative practitioner represent them, and in many cases may also have a family relationship consultant (to assist in managing emotions, communication problems, and children’s issues) and/or a financial expert (to gather financial data and manage other aspects of the financial landscape). It is however cheaper than standard lawyer negotiations, where lawyers progress the matter with letters passing back and forth, and is significantly less expensive than litigation – particularly if the matter requires multiple Court hearings on interim issues and then a trial.

For many families, mediation is not enough support and they don’t want to end up in a war of paper conducted by litigious lawyers, nor do they want to go to Court. Collaborative Practice sits in the middle of those options in terms of cost, but it is, in our view, the process most likely to preserve relationships for the sake of children and give the parties an opportunity to really hear what is important to each of them. It also enables parties to craft outcomes that simply would not be available to them if they went to Court.

Contact
close slider

Contact us