Collaborative Practice in South Australia

This publication was developed by the Collaborative Practice Committee of the Law Society of South Australia

 

Representation without Litigation

Collaborative Practice involves a written commitment by the lawyers and their clients to work together, collaboratively and in good faith, to negotiate a settlement. The clients agree that if a settlement can't be negotiated, then the case will be referred to other lawyers to resolve the dispute, through litigation in court. The theory behind Collaborative Practice is that the parties and their Collaborative Practice lawyers all have the intention and want to work towards a negotiated resolution.

The parties:
  • Are each represented by lawyers trained in collaborative negotiation
  • Agree to exchange information in a cooperative manner
  • Negotiate in "four-way meetings" in which both the parties and lawyers participate
  • Hire experts, if needed, to provide information and support through the meetings e.g. financial advisors, tax experts, psychological counsellors etc
  • Promise to take a reasoned stand on every issue and to negotiate in good faith
  • Make sure actions are agreed to by both parties

Collaborative Practice has proven to be successful in achieving settlement in the majority of cases in which it is used.
Collaborative Practice History

Collaborative Practice was started by a divorce lawyer in Minnesota by the name of Stu Webb. 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 client. 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) www.collaborativepractice.com is an international interdisciplinary organisation promoting collaborative practice around the world.
Collaborative Practice process - overview

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.

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.
Some of the 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 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.
Some advantages of Collaborative Practice include

  • 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 (personal, business, etc);
  • Minimisation of hostility and conflict;
  • Clients retain control over the dispute resolution process and eventual outcomes;
  • 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.
Core Elements of Collaborative Practice

  • 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.
Applicable 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 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 Practice 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 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 timeframe, 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 lawyer 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 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 Collaborative Practice 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 prioritise 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.
Further Information