OVERVIEW OF COLLABORATIVE LAW PRACTICE
by Ian Field, Family Law, Brisbane
A new way of practicing family law and avoiding Family Court litigation.
Of all the following celebrities are you able to distinguish those that used the collaborative approach to resolve issues arising from the breakdown of their marriage or went down the traditional path of litigation. Madonna, Uma Thurman, Robin Williams, Tiger Woods, Paul McCartney and Ashley Cole. Which ones were involved in a vitriolic, public slanging match portrayed in the media worldwide providing detailed information about their relationship. Madonna, Uma Thurman and Robin Williams used the collaborative approach and very little, if any, information was provided publicly. We all read about the public breakdown of the relationships between Paul McCartney and Heather Williams, Tiger Woods and Ashley Cole who went down the litigation path.
Nearly half of all marriages in Australia end in divorce. The proportion of divorces involving children is 48.8% (Australian Bureau of Statistics). A marriage of 7 years in the eyes of the Family Court is a lengthy marriage. The average marriage in Australia is 12 years (Australian Bureau of Statistics). The breakdown in de facto and same sex relationships (although statistics are not readily available) would be in the view of the author greater than the breakdown in marriages.
Divorced parents, re marriages, blended families, shared custody in one form or another with the potential for parental disagreement and conflict constitute the daily life experience of a large and growing percentage of children growing up in Western cultures today.
The divorce passage is far from easy for most people. In many cases the emotional trauma of a breakdown in a relationship is only second to that of the death of a loved family member or spouse. The grief and recovery process resulting from a breakdown in a relationship parallels the stages of recovery from a death of a loved one. Divorce requires unusual emotional resources from parties at a time when they typically are experiencing high levels of stress and lowered coping ability. Moreover, clients are expected to make financial and parenting decisions of enormous importance for the future well-being of themselves, their family and their children at a time when strong emotions often impair their ability to make sound judgments.
Study after study has documented the substantial harm inflicted on children by high conflict divorces in which parents use the Courts as a battle ground for seeking redress for deep emotional pain which the Courts cannot possibly remedy. This is a common experience of the author in the conduct of his family law practice. Courts, even with the best intentions, are poorly adapted to meet the needs of families as they breakdown and restructure.
The Family Law Courts fall far short of including the kinds of comprehensive conflict resolution, financial and psychological services that families involved in a relationship breakdown typically require. The Courts function in an adversarial model.
Most litigants emerge from a settlement in the Family Court disillusioned with the process. They tend to expect what has been set out in their Court statements (affidavits) when in reality they are awarded something that is far less than that they had hoped for. Unhappy clients are common place in family law litigation. The fees and costs incurred in family law litigation are in many cases well beyond the financial means of a client.
Nearly all litigated proceedings which mainly deal with parenting and financial issues end, not in a judgment after trial but rather in a negotiated pre trial settlement agreement, at some stage prior to the actual trial. Approximately 4% of applications filed in the Family Court of Australia and Federal Circuit Court of Australia go to trial and of that 4%, 75% relate to children’s issues.
Economic and emotional costs (which in many cases are irreversible) are often incurred in the lengthy preparation of a matter for trial that precedes the eventual effort to settle. In many cases agreements are hammered out virtually on the eve of the trial date through considerable pressure from lawyers and in some cases Judges. Some people wish to put themselves through the pain and anguish of Court proceedings (even if their partner does not) with the high emotional and financial costs involved.
Collaborative practice in contrast takes place entirely outside the Court process. Collaboration proceeds without reference to Courts except at the end of the process to formalise a divorce or agreement reached by the parties in the collaborative process.
Collaborative practice meets the needs of clients involved in a relationship breakdown.
Since its emergence in 1990 collaborative practice has been a rapidly growing family law practice throughout America, Canada, Europe, England and now Australia. Collaborative practice is also being introduced into Asia.
On 1 January 1990 Stuart Webb, a Family Lawyer in Minneapolis in the United States decided that he would henceforth represent his clients only pursuant to a binding agreement that neither he nor the lawyers for the other party would ever go to Court for their clients. His sole purpose was to ensure that his client and his client’s partner were able to reach an efficient respectful and interest-based resolution on matters resulting from a breakdown in the clients’ relationship. Stuart Webb realised that he needed like-minded family lawyers to practice family law in this manner. Linkedin profile of Stuart Webb HERE.
Since 2006 Collaborative practice has now established itself as a prominent means of resolving family law disputes in Australia.
The core element of collaborative practice is that lawyers and their clients will not threaten to resort to or engage in litigation during the period of their collaborative negotiations and all negotiations are to take place outside the Court system.
As a result of Stuart Webb’s endeavours the International Academy of Collaborative Professionals (IACP) was formed and includes membership of family law practitioners, psychologists (communications professionals), financial planners and accountants (financial neutrals) throughout America, Europe, England and Australia. I know that trainers in collaborative practice have lectured in Asian countries. There may be members in those countries as well. Cathy Gale, a prominent collaborative lawyer in Melbourne, sits on the Board of the IACP. Further details of Cathy will be provided later in this overview.
The core element that distinguishes collaborative practice from other areas of family law practice is the binding collaborative agreement (referred to as a “Participation Agreement”) which prohibits the lawyers and their clients from participating in contested Court proceedings during the period of the collaborative negotiations.
Very rarely will a client enter into this practice wanting revenge or to take the other party to the cleaners or to thoroughly destroy the other party. It is the norm in family practice for the client to tell their lawyer that they just want to be fair. The fairness that they are seeking may differ from party to party.
In collaborative practice the wishes of the parties are ascertained prior to the first combined meeting with their lawyers and are made known to each party at the early stages of the joint negotiating meetings. It is quite common for the parties to have the same wishes and goals which are usually recorded on a white board and which are visible throughout the negotiating process. The wishes and goals normally are:
- I wish to reach a fair agreement with my partner.
- I wish to agree a settlement that will provide some financial security for my future and for my family.
- I do not wish our children to become involved in our conflict.
- I want what is best for our children and our family.
- I wish to maintain as best as possible a friendship with my former partner that will assist myself and my former partner to effectively co-parent our children in the future which will enable us to be involved in the future lives of our children, to attend on family occasions such as weddings and to maintain a strong relationship with our grandchildren.
- It is my wish that my future relationship with my former partner will allow us both to maintain an association with our mutual friends and extended family.
- I wish to maintain privacy in my personal affairs and to avoid details of the problems we are presently experiencing being publicly aired or become the subject of a public court record.
- I do not wish to have some other person such as a Judge tell me how to manage and restructure my financial affairs or determine what my future arrangements with my children will be. It is my wish that my former partner and I make these decisions intelligently without having them forced upon us.
Settlements reached in the collaborative process come from a process that differs dramatically, in nearly every important respect, from the litigation Court process. Collaborative lawyers have to be specifically trained and undergo continuing training to work together in the negotiation meetings with the client to reach an agreement that is fair and reasonable to all concerned. Collaborative lawyers are trained to listen deeply to the client’s entire story at the first meeting with the client and to gain a clear understanding of the wishes, goals and emotional issues that are involved in the client’s life at that point in time. In the first meeting with the client the collaborative lawyer will endeavour to educate the client about the negotiating process involved in collaborative practice to empower the client to participate actively and effectively in the negotiations that will take place in the joint meetings.
Because of the training undertaken by collaborative lawyers they have a different way of conducting their work for their clients. Instead of running their files on the basis of obtaining the largest possible resolution for their clients which in many cases is done on an aggressive basis no matter what the damage may be to the client’s family or the financial cost to the client, collaborative lawyer’s aim to assist their clients to achieve their highest intentions for themselves and their children in their post divorce restricted family. Collaborative lawyers have an effective working relationship with each other and work on a common basis to achieve the best results for their clients. Collaborative practice provides creative problem solving that is not available or exists in mediation or litigation. Collaborative lawyers work together to assist their clients to reach resolution that best meets the needs of their client.
All substantive discussions, information sharing, option development and negotiation subsequently take place in face to face meetings with the clients aided by the joint efforts of the collaborative lawyers. The role of the collaborative lawyer is to act as a guide for the negotiations and the management of conflict. Collaborative lawyers move away from outcome driven resolutions and work effectively together with the clients to offer the clients the best possible circumstances in which to work in good faith, on an interest based, respectful manner at an appropriate place towards a mutually beneficial and accepted outcome.
The process facilitates maximum client involvement and control over outcome whilst ensuring privacy and creativity. The Participation Agreements signed at the first joint meeting commits all participants to negotiate in good faith bargaining voluntary full disclosure with an acknowledgement of the long term interests of the parties and identification of the clients’ goals and wishes.
Other collaborative professionals
Other collaboratively trained professionals may be involved in the collaborative process. The collaborative teams involve the two collaborative lawyers and can involve a communication professional (either a family or child psychologist) and a financial neutral (a financial planner or accountant).
The communication professional maintains highly focused communication during the negotiations, endeavours to reduce the stress levels during the meeting and assists the parties in their clarification of the issues involved. They have anger management skills which help the clients move as effectively as possible through the collaborative process. The child specialist provides balance, non judgmental, non evaluative information about the children’s needs during the negotiating process with an aim to develop high quality parenting plans. Communication professionals offer a very comprehensive role in bringing matters to a resolution. (Details of a communication professional who has been actively involved in the collaborative process can be provided if required).
The financial neutral helps the parties to clearly identify their property and financial issues, their incomes and expenses, to effectively document such matters for the collaborative lawyers to use in the negotiations which take place whilst at the same time helping the clients with immediate budgeting concerns, identifying key financial issues needing to be addressed in the negotiations and assisting in the settlement process by analysing tax issues and projecting long term financial consequences of various settlement options which may be put forward. (Details of an accountant who has been actively involved in the collaborative process and has been a co-trainer in the training of collaborative family lawyers and other professionals can be provided if required).
Having a team approach contains conflict and educates clients in ways which can significantly reduce their legal fees. The team approach streamlines negotiations and provides long lasting “value-added” resolutions. It enables the clients to enter into educated resolutions of the matters of concern to them.
Having a team approach usually results in a resolution that costs less than it would have been if they had been represented solely by their collaborative lawyers. It enables the parties to reach respectful, efficient, lasting, mutually workable solutions to divorce related problems that will help the parties as parents provide effective co-parenting of their children in the future. All interdisciplinary collaborative professionals sign contractual agreements that bar them as with the collaborative lawyers, from participating in contested Court proceedings between the parties.
International Academy of Collaborative Professionals (IACP)
An International Academy of Collaborative Professionals was founded to maintain a consistent vision of core elements and standards for collaborative practice. The IACP was founded in the mid 1990s. It sets and maintains the standards for collaborative practice throughout the world.
Details of the IACP is available here.
Training for collaborative professionals
Collaborative professionals are required to undergo specific and detailed training if they wish to become registered and to practice in the collaborative area. In Queensland they are registered with Queensland Collaborative Law and must attend regular practice group meetings held on a monthly basis and undergo continuing training to practice in this area of law.
Certain collaborative professionals have been trained specifically as trainers to provide the training required for lawyers to become collaborative practitioners. Pauline Tesler, a prominent collaborative practitioner in America came to Australia in the early 2000s to provide the necessary training for collaborative professionals.
Australian trainers were specifically trained to carry out this work. Prominent trainers in Australia are Cathy Gale and Professor Tania Sourdin.