Collaborative Practice Process
Collaborative practice is a recognised method of resolving your family law issues without having to resort to litigation.
What is Collaborative Practice?
Collaborative practice is a recognised method of resolving your family law issues without having to resort to litigation. It is a voluntary dispute resolution process, in which you and your partner work with collaborative lawyers, collaborative coaches and other experts to creatively problem-solve issues using face-to-face communication. It allows you and your partner to negotiate a resolution that targets priorities (whether they are financial or child-related) and that works for your family. It focuses on an end result, which satisfies both you and your partner, with little conflict.
How does it work?
In the collaborative practice process you and your partner each have your own collaborative lawyer. Often the process is facilitated by a collaborative coach who directs and guides you and your partner and your respective collaborative lawyers through the process, while ensuring everyone adheres to the objectives. Financial professionals, child consultants and/or other experts may also be appointed to work impartially as part of the collaborative professional team to help you and your partner make informed decisions.
All participants sign a Participation Agreement prior to committing to the collaborative practice process. This is a contract that includes an agreement to settle the family law issues without involving the Court.
The collaborative practice process involves a series of meetings where you sit down both privately and together with your collaborative lawyers, coach and/or other experts to discuss options to best satisfy both your and your partner’s goals and interests. Legal advice is provided by the collaborative lawyers in the presence of both you and your partner and all negotiations are conducted during the meetings. Correspondence is kept to a minimum, with minutes recorded and circulated as to what takes place in the meetings.
Often the steps involved in the collaborative practice process are as follows:
Depending on the complexity of the issues, the collaborative practice process may take time, and require multiple meetings and help from different members of the collaborative professional team. After reaching an agreement, it may be submitted to the Court for orders to be made.
Collaborative practice relies on open communication and the sharing of information between you and your partner and the collaborative professional team. To ensure the process works, you and your partner need to voluntarily and freely disclose all information relevant to the matter and then make an effort to negotiate a mutually acceptable plan.
Who may be involved in the Collaborative Practice Process?
- You and your partner.
By committing to the collaborative practice process you and your partner agree to focus on the future, work in the best interests of your children, openly share information wellbeing of both of you and any children, work to reach agreement and find solutions that are acceptable to both of you.
- Collaborative Lawyers.
Your collaborative lawyers will identify what is important to each of you and your partner and identify the questions to be asked and provide legal advice. Your collaborative lawyers will help you gather relevant information, create options to help you both meet your goals and help you negotiate an agreement. They may also draft the agreement into orders for the Court.
- Collaborative Coach.
Your Collaborative Coach is a neutral third party that case manages and facilitates the collaborative practice process. This includes carrying out an assessment at the beginning of your matter and facilitating meetings individually and jointly with you and your partner, your respective collaborative lawyers and other experts. The Collaborative Coach may also assist you and your partner with communication issues, negotiating an agreement and drafting the agreement into orders for the Court.
- Financial Professional.
Your financial professional is an accountant or financial planner/advisor, business/property valuer or other financial expert and may also be trained in collaborative practice. Your financial professional may recommend you initially to the collaborative practice process and may meet with both of you, individually and/or together to provide options and ideas as to how best to manage your finances and property. The appointment of your financial professional may be useful where you need to create dialogues around money, help to understand your finances and/or generate ideas. Your financial professional will provide information including by way of cash flows, inventories and reports, not recommendations.
- Child Consultant.
Your Child Consultant is an expert in child development, such as a child & adolescent psychologist or psychiatrist and may also be trained in collaborative practice. The appointment of your Child Consultant may be useful where it would be helpful to have someone skilled in assessment and engagement with children and working with parents. It may also be helpful where one of your family members has a mental health issue. Your Child Consultant will be an advocate for your children (not a child therapist) and will guide you in making arrangements that are in the best interests of your children.
Collaborative Process FAQs
In addition to collaborative practice, the main dispute resolution options to resolve your family law issues are as follows:
- Negotiation (direct or assisted by your lawyers). This is often position based and characterised by an offer, counter-offer and incremental bargaining until a final agreement is reached.
- Mediation. This is a structured negotiation where an objective and independent third party, the collaborative coach, assists you and your partner reach an agreement. The collaborative coach does not provide legal advice.
- Arbitration. This is a private determination by an impartial third party who can make a binding award.
While all of the above dispute resolution options may effectively resolve your family issues, the key differences between Collaborative Practice and mediation are as follows:
Whilst mediation can be used prior to or after the commencement of Court proceedings, people often turn to mediation too late (e.g. just prior to final hearing). As a result, people may have already spent significant time and money and have suffered the collateral damage of litigation and therefore approach resolution from an adversarial and position-based perspective.
Collaborative practice is designed as an early intervention, to be used instead of litigation. As a result, you and your partner will save money, time and avoid the collateral damage of any litigation and keep the decision-making in your control.
- Assistance from lawyers
In mediation, negotiations may be conducted with or without the assistance of lawyers and therefore you may not have the benefit of obtaining legal advice during mediation negotiations. Collaborative coaches will not draft Court documents (only Parenting Plans or a Heads of Agreement on financial issues) and therefore there may be problems or delays with lawyers drafting the Court documents.
In collaborative practice, you and your partner will have collaborative lawyers to represent you and who will be available from the commencement of the matter until orders are made. Additionally, your collaborative lawyer will prepare you before, advise you during and debrief you after all meetings to ensure you get the most out of the interactions.
- Process v event
Collaborative practice is an ongoing process, while mediation is often a one day event. There may be a preliminary conference and/or preparation required prior to mediation, but typically the expectation is that the mediation will be completed, successfully or not, in one day or less.
The collaborative practice process involves a series of meetings before resolution and therefore there are opportunities to pause and assess, to prepare for each issue to be taken up in the next meeting, and for debriefing. There is more opportunity for refinement and for tailoring the agreement to meet your family’s needs and interests.
Yes. Professionals involved in the collaborative practice process must abide by their respective professional conduct rules concerning confidentiality. However, those professionals with a duty to report may override confidentiality (e.g. if a child is considered at risk of harm). Discussions and documentation (excluding financial disclosure) and any offers are not to be referred to in court – they are on a ‘without prejudice’ basis.
Collaborative practice is not an option in every family law case. If you or your partner are, for example, seeking revenge-type options or if there is a history of domestic violence and manipulation, then collaborative practice may not be suitable. However, if you believe you can communicate respectfully with your partner, want a continuing relationship with your partner, prioritise issues, consider others and want to avoid litigation, then it is likely that collaborative practice is right for you.
There are numerous benefits for you to undertake collaborative practice, including the following:
- Avoid litigation:
By avoiding litigation, you avoid the costly and timely processes involved in taking a matter through the court system. Non-litigious solutions are more flexible, less stressful and avoid the imposition of court orders you may have little to no say in. Additionally, by agreeing from the outset not to end up litigating, everyone is encouraged to work hard to reach agreement.
- Maintain a respectful relationship:
Collaborative practice aims to maintain and improve respectful communication and, if you have minor or adult children together, affirm your relationship as parents. This increases the prospect of commitment to the agreed solution, and future cooperation with each other.
- Reduce conflict and stress on your family:
Collaborative practice works to lessen conflict between you and your partner by communication of interests, concerns and desires. It also prioritises the best interests of your children and helps shield your children from the stress of being exposed to conflict. This assists with future co-parenting.
- Decide the solution:
By using collaborative practice, you and your partner maintain control of the outcome reached and avoid delegating this to the court or others.
- Avoid excessive costs:
While you will pay legal fees, because collaborative practice demands transparency from you and your partner and eliminates the prospect of court, some lawyer time and therefore costs are saved.
- Timely process:
Collaborative practice meetings can be scheduled without delay, at times convenient to you, your partner and the collaborative professionals.
- Engage the assistance of other professionals:
In addition to lawyers, collaborative practice may involve assistance from collaborative coaches, financial professionals, child specialists and/or other experts, which aid in forming a shared solution.
- Specially trained professionals:
Collaborative professionals are specially trained to deal with conflict resolution and guiding you to an effective resolution of your family law issues.
- Focus on the future:
Collaborative practice focuses on developing effective solutions as opposed to getting stuck on grievances and other relationship issues.
- Confidential and private
As the collaborative practice process is confidential, you avoid the public exposure of your family law issues in a Court setting and the impact on your and your family’s reputation.
The collaborative practice process relies on full and frank voluntary disclosure. If you or your partner fails to disclose required information, your lawyer must withdraw from acting for you. This is part of the rules contained within the Participation Agreement. If you find out after reaching agreement that your partner has not disclosed all relevant factors, then the agreement may be overturned in court.
The Participation Agreement is a contract that forms the basis and guidelines for the collaborative practice process. Signing of the Participation Agreement ensures commitment by you and your partner, your collaborative lawyers and the collaborative professional team to resolution of your family law issues without litigation-based negotiation or Court proceedings. If an application is made to resolve the issues discussed in the Participation Agreement in Court, then you and your partner must withdraw from collaborative practice process and seek different legal representation.