What is Collaborative Law?

 
Topic:
Author:
   Collaborative Law         
   Sue Parker
Sue Parker 2

Hello we're talking to Sue: today who is the principle of Parker Law; we're going to discuss what is Collaborative Law or Collaborative Practice. Sue is well qualified to do this.

She's not only an Accredited Family Law Specialist with the New South Wales Law Society, but also a member of the Collaborative professionals (NSW) Inc, Central Sydney Collaborative Forum practice group and International Academy of Collaborative Professionals.  Sue that's quite a mouthful.

Sue: Yes, because Collaborative is such a long word.

Q:   Could you tell us what is Collaborative Law or Collaborative Practice?  
What is the terminology nowadays?

Sue:  I prefer to refer to it as Collaborative Practice, because it's a voluntary dispute resolution process and not a branch of law, like Family Law or Criminal Law but a practice that has been developed in America as a way of helping parties resolve disputes without using the litigation process

Q:   What does it involve?

Sue: A series of meetings between parties and their lawyers.  Where the objective is to work out a resolution to the matter in dispute e.g. a property settlement or children's arrangements.

Each meeting is carefully structured and an agenda is set by the two parties’ lawyers.  The parties then work through the agenda with the assistance of their lawyers with a view to coming to a solution. It can be relatively simple, but it depends very much on the nature of the dispute and what the parties’ particular issues are.

Sometimes the big picture can be easily resolved, but in Family Law there are always the details that are often difficult. The meetings give the parties the environment to have discussions with the guidance of their lawyers but without adopting positions and coming to loggerheads.

Q:  What are the rules?  How does it work?

Sue: The parties have to choose a lawyer who is trained in Collaborative Practice and will work in a Collaborative manner. When a person comes to me,  I either talk to them about Collaborative practice and ask them whether  they would think it would be a suitable option for them,  or else they come to me saying they've heard about Collaborative Practice and want to use it.

Next we ask the other party (their partner) to agree to use the Collaborative process. That's usually done by discussion between the parties or I'll send a letter to the other side saying I have been consulted by my client, and they would like to use the Collaborative process.

Both parties have to agree and then we set up a meeting with the two parties and the lawyers.  Sometimes we include a coach and/or a financial advisor to assist the parties.

At that first meeting, we go through what is called a "participation agreement" which sets out the basis or rules on which we meet.

We also have basic ground rules, which are the same for most meetings -

  •          that each person is allowed to speak without interruption
  •          parties will be treated with mutual respect
  •          each party will do whatever is required to try and move the process forward

The participation agreement requires that the parties and the lawyers to commit NOT to go to litigation or NOT to threaten litigation.

Q:   That's a little different from the traditional approach?

Sue: Yes, particularly for lawyers   ... and it's important because of what's happening in the meetings e.g.

  •          both parties agree to be frank and open in disclosure during discussions e.g.  in financial matters or matters relating to the children.
  •          lawyers are also signing up to that agreement ......so  if for some reason the Collaborative process fails or one party decides they no longer wants to participate in the Collaborative process ......  the lawyers have to withdraw acting for their party

I've heard of someone trying to use the Collaborative process to get sufficient material to start litigation.  Which is why it's very important that everybody commits at the start, that they won’t go to litigation or threaten litigation.

 Q:   If it fails it could be quite an expensive exercise?

Sue:  Yes... That's the disincentive for the parties, that if it doesn’t work they have to start again with a new lawyer and they can’t use anything that has been said in the Collaborative process.

Q:   They are made aware of this in the very beginning?

Sue: I explain that in my first or second conference with the client, and it is in the Participation Agreement. If they decide they want to use the Collaborative process then it's also reaffirmed at the first collaborative meeting when the parties sign up to the Collaborative agreement.

I recently went to a Collaborative Practice function for lawyers where some lawyers had adopted the approach where they go through the participation agreement in the first meeting, but they don’t get the parties to sign it until the second meeting.

The parties can have a cooling off period for a week or so .....  they can actually really think about whether they are prepared to commit to that process and then come back to the second meeting a short time later and sign up and get on with resolving the issues.

Q:   Sue what is the difference between Collaborative Practice and Mediation for example?

Sue: In Mediation you have a mutually agreed trained third party who mediates between the parties. Both parties get to have their lawyers present their case with the intention to look for common ground - as opposed to what they don't have in common - on issues where they possibly can reach an agreement. 

The mediator relies on the parties to make concessions and agreements. It can be a very successful process.

Collaboration is different in that you don’t have a third party. You have your lawyer who gives guidance before each meeting and will provide advice during the meeting and if this occurs then this advice is heard by both parties.

That's where it's Collaborative as opposed to Mediation, because in Mediation the lawyer might present an argument to the mediator and the mediator might ask "what about this?" And the lawyer might say "well I need to step out and speak to my client to get instructions."

Q:   What about the difference between Collaborative Law Practice and litigation?

Sue:  In litigation, each party invariably adopts what we call "a position".

They file an application to court that sets out the results that they want to achieve and all of litigation tends towards trying to achieve that result.

Q:   This is after they have gone through the normal process of Family Relationship Counselling and trying to resolve issues through discussion /  mediation, we're talking about the court process here?

Sue: Yes, litigation is the court process. In litigation each party has a particular result they would like to achieve and if it goes to the very end they have an independent person, being a judge, who makes the decision.

 So the decision making is taken out of the hands of the party and this is an important point!

 In Collaboration, we discourage parties from adopting a position at any stage.

We try to get parties to focus on -

  •          what their interests are and
  •          what their long term goals are

 Long term as in -

  •          how do they see the family in ten years' time?

 This is important as parties with very young children, might be particularly bitter and disappointed when their relationship breaks down and find it hard to look down the track.

We encourage parties to focus NOT on what happened to break the relationship up, BUT

  •          what CAN happen for the children to maintain a functioning relationship with each parent

and this will also flow over into financial settlements as well.

Q:  This is something that's very dear to my heart i.e. taking into account the children's future  My children were only tiny when my marriage ended and I've lived through seeing how divorce  impacted on them.

I really value the approach of people trying to work together with the view to maintaining, as much as possible, some semblance of family unity. That's a very individual thing I know and depends on the circumstances, but over the years, I've learned how important it is and regret that we weren't able to do a better job of maintaining some sort of family unit.

Sue: It's one of the things that gets very lost in the litigation process, although judges do try to stress to the parties that they are co-parents even though they are no longer living in one house.

They are still co-parents and the children take their identity from each parent so it's very important for the children’s welfare that parents can maintain the relationship of co-parenting wherever possible, and that's certainly something that's stressed in the Collaborative process.

Q:  How does one get started on this route?
 You mentioned they choose a lawyer and sign an agreement and both work in good faith.

Sue: I wish it was that simple. Yes, the parties need to be prepared to work in a Collaborative process. It's not an easy process in that it can be confronting sitting across the table with your ex trying to negotiate various things. It's also important that the parties move forward.

In some matters we may need a coach to help them to achieve this e.g. with their communication and or emotional reaction to each other. For example, I'm involved in a matter at present where we have a coach who in one meeting said - "ok I need to talk to the parties directly about their communications and what it's doing to them". 

The coach explained to them how that communication was impacting on their children. For me as a lawyer, I found that a hard message to hear and it can be quite a hard message for parties to hear.

Q: Did the coach say it in front of the other parties’ lawyers in the open meeting?

Sue: Yes, because the coach wanted to have it recorded in the minutes.  Both parties had agreed to the Collaborative process but they hadn’t really expected that the process required them to look at how they communicated with each other.

Q:  That's interesting.

Sue: The parties have to be ready to actually say -
 " ok, I'm going to put my hurt and bitterness into the bottom drawer for now and just work on what I need to do to get the matter settled. "

 So they need to talk about -

  •          the practicalities of sharing care of the children and
  •          the practicalities of the financial settlement and
  •          how it can be managed and
  •           try not to let the personal hurt get in the way.

When we do not have a coach, I have also encouraged parties to go to counselling alongside the Collaborative process so they can get the emotional support from outside the Collaborative process and can come into the meetings feeling rational and sane and less likely to react emotionally to something that might be said.

Q.:   Is that counselling separately or together?

Sue: Separately.

Q:   When would this process not be suitable, you just mentioned if they are in a position to put their pain and hurt away in the bottom drawer.

Sue:  When there is a real power imbalance in the relationship e.g. I have had one matter where the client wanted to participate and then sat in the meeting and didn’t say anything presumably because that was his normal response to the other party.  It is a process that requires clients to put forward their interests and needs.  With the assistance of the coach he devised a strategy that helped him to speak up in meetings.

In the litigation process, the client’s sit behind their lawyers who stand up and talk to the Judge.
In the Collaborative process, it really is the parties having their say.

Q:  So they need to feel equal and to feel a certain amount of empowerment to be able to achieve a successful outcome?

Sue: Yes, I don’t know about equal, but they certainly need to feel empowered that they can speak up and put their point of view across.

Q:   To know what they want to achieve and as you said - to be prepared to negotiate and be flexible on it?

Sue: Yes, before the collaborative meeting I have a separate meeting with my client and discuss -

but it's very much a matter for the clients to negotiate what the settlement is.

Q:  Sounds like it can be quite involved, is it a quicker or cheaper option then going down the traditional Family Law road?

Sue: It can be quicker and cheaper, but it may not. It really depends on the parties.  I've had one matter being settled through the Collaborative process within a six week time frame.  But the parties were prepared to get on and negotiate and get it settled.

I've got another matter which has taken almost twelve months and we're not settled yet. Meetings have been delayed through the parties' e.g. gathering financial or other information in between meetings and if they haven't got it all together, the meeting needs to be rescheduled.
 It's very much in the control of the parties as to how long it takes.

Q: That would be the case with traditional Family Law as well wouldn’t it?
Some cases can resolve quickly and others can take one or two years sometimes particularly if there is a court case involved?

Sue: That's correct. If you actually go to a hearing, a court case can take eighteen months to two years, but you could also take the litigation route and settle it at the first or second court date.

I can’t say that Collaborative is faster than litigation nor can I say it’s cheaper because again if you start the litigation process and settle at the first or second court appearance, you have not incurred that much in costs.

Collaborative can be quite expensive depending upon the number of meetings you require but what is important is that the parties are working together and in charge of the outcome and not in a combative court environment.

Q:  Why did you get involved in Collaborative Practice Sue?  I know it’s getting more popular but it’s still not the traditional way to go is it?

Sue: Yes. Having seen  what happens in litigation it just struck me that there needs to be some other way of dealing with disputes which is why I undertook Collaborative training and  also Mediation training -  with a view to trying to get more satisfactory results for clients and minimizing what’s involved in litigation.

Litigation is my last choice for clients.

In litigation clients do not control the decision making process and invariably they are not happy with the outcome at the end of the day - because someone else has made the decisions.

Q: There have been many instances where people who go down the court road end up a lot poorer and very bitter for the amount of money it has cost them and as you say they don’t necessarily get the action they want.

Sue: That's right.  I had one case which ran for ten days. They argued about everything - the value of every asset, their contributions and about who had taken what. I think they would have argued about their respective dates of birth if that was open to them. They just argued about every little thing and in the end the judge just divided it all 50/50 and they had spent a horrendous amount of money in the process.

Q:  When situations like that come occur, it must come down to a power battle or a desire to get back at their partner?

Sue: Oh yes, there is always a lot of emotion in Family Law matters. It's about a lot of other things beside what the actual legal rights and wrongs are.

Q:   I guess that's the purpose of collaborative practice, to allow a way forward for people who really do want to sort it out quickly and move on with their lives?

Sue: Yes, in the meetings we explain to parties what the legal approach is if you are applying the Family Law Act. In Collaborative it may not be the same; you don’t go via the strict legal approach but look at what are the parties’ particular needs.

For example, a property matter in court might settle on 60/40 division, because the wife has care of the children and not working and the husband has a reasonable earning capacity.

In a Collaborative context, that matter can settle on any other basis that the parties agree that's suitable for them. They might come to an arrangement where the wife will get less of the property, but she will get a bit more by way of child support, or the husband might provide additional child care or pay for child care, which is not strictly part of the child support arrangement. They can be as flexible as they like in coming to their solution.

Q: You said earlier, that the Collaborative process allows people to bring in other parties or advisors, for example a financial planner, accountant, psychologist or child specialist to help guide them. That could influence the outcome as well?

Sue: Yes, we can sign up a coach, psychologist, child specialist or other relevant professional to the collaborative participation agreement and they then participate in all the meetings.  In one matter I had, we referred the parties out to a child specialist ... to come back at the next meeting to advise they had the children's issues through that specialist without the specialist coming into the meeting.

In that same matter we also had a financial specialist who prepared a report stating - and that was quite different from what a family court would have done in that same matter. 

Q:  I know it's becoming far more accepted practice to for example to involve financial planners  to use sophisticated modelling to help people make decisions when negotiating  a financial package re the best structure from a tax and investment outcome to meet each parties needs .. as opposed to just a straight 60/40 or 50/50 division.

Sue: Yes, I think it would be helpful if it was used in a lot more cases but clients can be price sensitive in that regard and say  "I don't want another expense that's going to cost me too much money."

 It's trying to convince clients that it's actually worth paying to get another specialist's expertise which can pay off in a more suitable outcome.

Q:   Sue to sum it up then it seems to be that the Collaborative practice is really suited to couples who want to work together or have decided to work together.
If they can deal with the reason they have broken up or at least manage their pain and hurt and are prepared to be open and honest and put their future and their children's future first?

Sue: Yes it's very much about putting their children first, but also even if you don’t have children it's looking at the future -

Q:   Is it very popular at present? What percentage of your clients would use it?

Sue: A lot of my clients go away and say yes I want to do this and then they come back and say their partner doesn't. It's starting to make some headway in Sydney but I think it will take some time until it becomes more popular. There are more practitioners being trained all the time. It's had a much greater take up in Melbourne where Collaborative Practice has been supported by the Law Institute in Victoria.

Q:   Is there anything else we need to know about Collaborative Practice.

Sue: I can’t think of anything other than that, I do recommend clients consider it when they are looking at having a Family Law property settlement or wanting to come to arrangements about their children. It's an option that's out there for clients as well as mediation and litigation.

Q:   Sue, thank you very much for your time today and we really appreciate you sharing your expertise with us.

Sue: Thank you Carolyn

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