Collaborative Law is an alternative dispute resolution process by which lawyers and their client(s) agree, by way of contract, to commit to the speedy and cost-effective resolution of a matter without recourse to litigation in the Courts.
The primary difference between Collaborative Law and other forms of dispute resolution is that under a Collaborative Law Agreement (should a matter be unable to be resolved) the lawyers involved in the Collaborative process are precluded from acting for the parties if it is necessary to commence Court proceedings.
This is an advantage for clients, in that settlement or resolution of the matter becomes the primary focus for the lawyers and parties concerned. Cost savings resulting from the speedy resolution of matters without resorting to Court processes are obvious. It allows for family law disputes to be resolved with dignity and respect, and with as little stress to those involved as possible, especially children. Solutions reached within a collaborative law process are able to be tailored to your individual situation. This should be matched against litigation which necessarily means that a third party (the Judge) makes decisions about your life!
The agreement between the parties and their lawyers commits them to making absolute disclosure with regard to financial matters and guarantees absolute confidentiality throughout the process. Most importantly, it commits the parties to come to an agreement and carry out that agreement.
To date, Collaborative law is relatively new in Australia but the process has met with much success in several overseas jurisdictions. Matters within the Collaborative Law framework are resolved in much the same way as matters before the Court, that is, we call upon the opinions of jointly retained experts such as valuers, psychologists, accountants, financial consultants and other professionals working together to help resolve the issues in dispute.
Some pros and cons of using collaborative processes:
- Clients are present at all times during negotiations and are empowered to participate in their own negotiation. This can result in greater client ownership of the outcomes.
- Clients are in control of the process. Agenda items, frequency of meetings and the professionals involved are decided by the clients, not the lawyers.
- Clients must pre-approve expenditure for all steps of the process and agree on how the professionals are to be paid.
- The collaborative contract provides clients with a clear understanding of the process.
- Unlike traditional lawyer negotiations, non-legal issues are not deemed irrelevant to the discussions.
- Clients can develop better communication and parenting skills.
- Clients with particular needs and vulnerabilities may cope better with negotiations when the threat of litigation is removed.
- Lawyers are learning a greater range of skills that can be incorporated into their practice.
- It is a less stressful way for lawyers to work in a profession that is noted for its mental health concerns.
- There are no tactics in this process. It has a win-win outcome and not win-lose at the expense of one of the parties.
- The same process of identifying and valuing assets and liabilities is used as with any other form of negotiation or litigation. The clients can then choose whether or not they want to conduct a detailed analysis of contributions. As the process is future-focused, “needs” are considered by both parties in the context of the best outcome for the family as a whole.
- It is not advisable for clients with extreme personality disorders, mental health problems, ongoing addictive behaviours or severe domestic violence issues.
- Unlike litigation, clients have no access to Rules of Court to ensure access to information and documents (known as “discovery”), or compliance with processes.
- The client is required to engage new lawyers if the collaborative process does not result in settlement.
- If the negotiation process breaks down, collaborative practitioners are not presently authorised to issue a certificate under section 60I(8) of the Family Law Act 1975, stating that the parties have attempted to settle their dispute – a prerequisite to initiating court action.
- There is no authoritative decision-maker in the room.
- Lawyers are required to undergo training and change their thinking from a rights-based to an interest-based model.
- Given the relative newness of this process, it can be difficult to convince the other party to participate.
If you need family law advice or would like to know more about Collaborative Law, please get in touch. We offer a free initial consultation and have a highly trained, caring and compassionate team of family lawyers ready to assist you. You can contact us confidentially on 13 20 30.
Source: Wiltshire Family Law & Australian Institute of Family Studies