Australia: Excelling At Collaborative Law Practice

Article by Freda Wigan, Partner

Introduction

Collaborative family law was founded by Stu Webb, a lawyer from Minneapolis, in the United States, in 1990. Stu Webb, suffering from the negative effects associated with family law trial work, discovered an alternative method of practicing law, where settlement was the focus and where he would only represent clients in negotiations, and in the event the process broke down, he would withdraw and his client would find an alternative lawyer to litigate².

The movement of collaborative law³, has developed since the early 1990s and has been widespread, moving across numerous jurisdictions within the United States, Canada, Europe, and in more recent years, the model has come to our Australian shores.

Within Australia itself, the practice of collaborative law originated in the Australian Capital Territory and following from this, lawyers have sought training in this area of dispute resolution in Victoria, New South Wales and Queensland.⁴

The practice of collaborative law appears to be the new ‘buzz’ in Australian Family Law culture and is attracting much attention. Collaborative practice has also received support from the Federal Attorney General. In the Report prepared by the Family Law Council, released in December 2006, collaborative practice has been stated to be a "valuable addition to the range of dispute resolution options available".⁵ The Report also provides that:

"Collaborative practice complements the Commonwealth Government’s new family law system. The Government’s 2006 reforms aim to ensure that separating couples have a range of options available to resolve disputes outside of the court system and encourage parents to reach agreements that ensure the ongoing involvement of both father and mother in their children’s lives. Collaborative practice supports these objectives by offering separating couples an effective alternative to litigation and requiring the parties to take an active role in negotiating creative and practical solutions which address each of the parties needs and focus on encouraging the best possible arrangements for children."⁶

In this paper, I propose to address the following issues:

• Provide an overview of collaborative law practice for the interested reader;
• Consider the qualities of clients and lawyers who may be best suited to collaborative law;
• Provide an overview of establishing a collaborative practice;
• Finally, I consider the report of the Family Law Council and the recommendations made as to the future direction of collaborative practice within Australia.

Collaborative practice is an alternative method of dispute resolution used primarily in family law matters. Whilst the process can be used in other areas of the law, such as commercial litigation, the focus of this paper is to consider collaborative practice from a family law perspective.

We are all familiar with the more traditional methods of dispute resolution including mediation, arbitration, counselling, negotiation and of course, litigation. Separating couples have a spectrum of options available to them to select from in relation to dispute resolution processes. Collaborative practice is another option available to separating couples. Collaborative practice offers parties a means of resolving their matrimonial case with civility and respect which can be attractive qualities to certain clients. Of course, you will always have those clients who seek their revenge against their former spouses and who wish to drag their matter through the court system, at considerable expense, hardship and bitterness to both sides. However, there are those who enter our office doors seeking a more dignified manner in which to resolve their matters.

Practitioners may also elect to be trained in and offer this service to their clients as a result of the rewards that come from working co-operatively, respectfully and collaboratively with clients, other lawyers and professionals in order to resolve matrimonial cases. There can also be the added reward of avoiding the stress associated with family law litigation.

An analogy may provide an insight into understanding this unique approach to family law dispute resolution:

"The divorce passage can be compared to a mountain-climbing expedition where there will be ascents up rock-faces and over deep crevasses before reaching the top. At dangerous points, the entire party is roped together, for the safety of all. Any jostling, pushing forward, hanging back, lack of attention to the agreed rules or other behaviour that fails to take into account the safety of the entire party jeopardizes the entire venture, including the person behaving dangerously. Working within the agreed rules and behaviours attentively is not only best for the venture as a whole, but also serves enlightened self interest.

Collaborative practice is where two parties each engage a lawyer to represent them independently. All parties and their lawyers sign an agreement which is referred to as a ‘collaborative contract’ or a ‘participation agreement’ which defines the boundaries of the process. For example, all participants will act in good faith and shall be respectful to one another and where the parties agree to fully disclose all information freely.

Often the process of collaborative law is described as being transparent which comes from the lawyers dealing with one another and disclosing and revealing to each other, information about their clients. This level of communication between lawyers is not necessarily a feature of traditional dispute resolution methods. Clients are obviously advised of the extent of information flow at the commencement of the process and consent to that exchange of information particularly if it will assist the overall effectiveness of the process.

The feature that appears to attract the most attention is the stipulation contained in the collaborative contact that the parties agree not to threaten or commence litigation and if either party wishes to resort to court (which is their right), they are not prevented from doing so, however, both lawyers will be disqualified from acting for the parties in court. The parties must then retain new legal representatives to pursue litigation.⁸ That is, the parties must start again with new lawyers and new experts.

Other factors may give rise to the process collapsing. For example, one spouse acting in bad faith such as delaying the process unnecessarily in order to incur additional cost in order to place pressure on the other spouse. Another example could be where a spouse has promised to provide full disclosure, who later instructs his or her lawyer not to release relevant information to the other spouse which is critical before a settlement can be reached. All of these reasons would justify a lawyer from withdrawing and terminating the process given the promises made at the outset – such as the parties and lawyers acting respectfully to one another, honestly and in good faith and recognising the need for full disclosure. Whatever the reason for the breakdown and termination of the process, it is clear that the lawyers for both parties must withdraw and are prevented from representing the parties further. The costs for parties to retain new lawyers and experts to start over is usually significant and this factor can keep everyone working towards a settlement as without the process of collaborative law, the parties may find themselves entrenched in litigation.⁹

In the case of one party’s unwillingness to disclose information to the other spouse, the ethical duty of lawyer/client privilege should be adhered to and would prevent the lawyer from actually breaching a client’s confidence and revealing the concealed information. However, that does not stop a lawyer from withdrawing from the process or terminating it, because that lawyer is unable to effectively engage in collaborating with the other lawyer.

Pauline Tesler is one of the early lawyers to practice in collaborative law and has and continues to expand the concept internationally by undertaking training of professionals. Ms Tesler states that:

In the collaborative practice model, experts play a very important role and are retained jointly as and when the experts are required by the parties. For example, an accountant may be engaged to value a business that is relevant to the case, or a financial planner is asked to consider a myriad of financial settlement options on behalf of the parties and their collaborative lawyers.

Some circumstances may arise where the parties are unable to resolve an issue which could threaten the overall termination of the process. To avoid this, the collaborative contract may include a provision for a joint arbitrator to be appointed to determine that one issue preventing the parties from resolving their dispute.

Another key distinguishing feature of the collaborative law process is where the participants all engage in direct communication with one another and negotiate based on the ‘interests of the parties’ as opposed to the parties adopting ‘positions’ being a characteristic of litigated matters.

Letter writing is also not a predominant feature of this process as the parties and their lawyers meet face to face in four–way meetings to discuss and resolve issues. The meetings are usually held at the office of one of the lawyers and are alternated between them. Agendas are prepared by the lawyers prior to each four-way meeting and efforts are made to keep within the confines of each agenda. Minutes are prepared for each meeting that records the issues discussed and any agreement reached. The minutes are signed by the lawyers and retained on the file as a record of the conduct of the matter.

The model also involves regular debriefings between a lawyer and client and between lawyer and lawyer before and after ‘four-way’ meetings.

Collaborative law is process driven. The stages associated with collaborative practice are summarised as follows¹¹:

• The initial meeting(s) between the client and the lawyer. This is where the client and the lawyer form a relationship and where the client is advised of the different options of resolving a dispute including collaborative practice. The client ‘self selects’ collaborative practice after being fully advised of the advantages and disadvantages of the process.
• The first contact with the other party and/or the other lawyer. This could be where you as the lawyer are instructed to correspond with the other spouse and invite him or her to retain a collaborative lawyer (by providing a list of names). Alternatively, the other spouse may have already retained a collaborative lawyer and you wish to notify that lawyer of your retainer in the case.
• The first four-way and pre-meetings and debriefings. In order to prepare for the first four– way meeting, a lawyer would confer with his or her client, communicating with and understanding the interests and needs of the client. The lawyer on the opposing side would similarly confer with his or her client coming to terms with their goals and needs. The lawyers would debrief with one another exchanging any relevant information about their clients to ensure that the first meeting proceeds smoothly and they prepare a draft agenda. The lawyers would then regroup with their respective clients reviewing the agenda to avoid any surprises for the first meeting. At the first meeting, the collaborative contract is reviewed and signed by everyone acknowledging the key principles. Further, at the first four–way meeting, there is a discussion and/or agreement reached as to the payment of the lawyers costs during the process. An agenda would be drafted for the second meeting.
• Mid-game four-ways and premeetings and debriefings. The number of meetings to be held by the parties will be determined by their needs and the complexity of the matter. The meetings would be set to discuss and determine parenting issues, share and disclose information and identify and value assets, liabilities and financial resources. In the event neutral experts are required to value any asset, then they would be engaged during the process. It is during these meetings that creative and positive problem-solving takes place by the parties and the lawyers to reach agreement, if possible, on all issues based on the interests and goals of the parties.
• Documenting the agreement and revising the drafts. One lawyer could be designated to draft documents, however, a further four-way meeting could be convened to make any changes to the draft documents.
• The final ‘four-way’ meeting is held to review and sign the documents and to end the process.
• The paperwork once lodged and stamped is distributed to the parties.¹²

As an alternative to engaging experts in the process, as and when needed, there is another form of collaborative practice referred to as the ‘collaborative divorce model’ or ‘interdisciplinary process’ where the parties each retain a divorce coach (to assist each party during the process), a child specialist (who is engaged through which the children’s wishes are heard) and a financial specialist (who is engaged to work out budgets and cash flows and who would prepare the schedule of net property to enable the parties to better understand their financial situation).

During the process, the coaches may meet with the parties and/or the lawyers and at other times the financial specialist would meet with the parties with or without the lawyers. The four-way meetings may become six-way meetings depending on the number of participants. The parties, lawyers and various experts all enter into the collaborative contract at the very beginning.

There would be obvious benefits and rewards to clients who participate in the interdisciplinary approach to collaborative law given the assistance parties receive from not only lawyers but their individual coaches, the child specialist who focuses on the children and the financial specialist. This approach is used extensively abroad.

Collaborative law is merely another form of dispute resolution. As lawyers, we still owe a duty to our clients to ensure that they are legally advised once all the available information is disclosed. The legal entitlement of the parties is one of many options available to them to resolve their matter and should be considered during the brainstorming negotiations and openly discussed in a fourway meeting. Whilst the clients are advised during the process on all aspects of their case, they may still elect not to resolve issues on a strict legal basis but instead, elect to settle issues for other reasons, based on their interests, needs and goals. This is the client’s choice after considering all options and indicative of the parties owning the process, participating in it, and being responsible for the outcomes.

Collaborative practice is not for everyone such that it may not be suitable for every client, and it may not be suitable for every lawyer.

There are some reasons why clients may seek to select collaborative practice, namely:

• "The intention to conduct oneself with integrity during the breakdown and restructuring of highly significant intimate personal relationships;
• The desire to maintain friendship with the former spouse after divorce;
• Ethical or religious beliefs about fairness, appropriate dispute-resolution procedures, forgiveness, and personal accountability;
• The hope that an out-of-court settlement will conserve financial and emotional resources;
• The belief that remaining outside the court system for dispute resolution permits greater privacy and control over the outcome;
• The belief that higher quality, more creative, and more individualized solutions to divorce issues can be crafted outside a litigation-driven process;
• The wish to insulate children from the anger, fear, stress, and chaos commonly associated with litigated family law proceedings;
• The desire to preserve the most positive postdivorce relationship available to parties in order to enhance the quality of postdivorce coparenting of children; and
• The desire to avoid the damaging effects on the postdivorce extended family that often accompany adversarial dispute resolution."¹³

Clients that may not be appropriate for the process could include those that suffer from severe mental illness, parties where there is a power imbalance between them, cases involving issues of family violence, a spouse who is unwilling to disclose information relevant to the process or where there is distrust between the parties. It may be that such clients are still appropriate for the collaborative process, however the interdisciplinary model may be more beneficial and offer additional support for more complex matters.¹⁴

It is important that clients ‘self select’ the collaborative process after receiving proper advice as to the numerous options available to him or her to resolve their dispute. This should include highlighting the advantages and disadvantages of each process, and that of collaborative process. In the event the client selects collaborative practice as the method best for them, he or she has done so voluntarily and after becoming fully aware of the aspects of the model that distinguishes it from others - including the disqualification of the lawyers in the event of the threat or commencement of court proceedings, the need for full and honest disclosure and the like. The self selection of the process, coupled with the participation by clients throughout the process and the overall outcome, should hopefully result in a reduced number or lack of complaints by clients.

To date, there are no national guidelines established in relation to the practice of collaborative law by lawyers however, this is an issue to be considered further in accordance with the recommendations in the Family Law Council’s report.

The draft guidelines to the Report prepared by the Family Law Council to the Attorney General released in December 2006, details some relevant considerations that should be taken into account when collaborating with another lawyer, namely¹⁵:

• The other lawyer’s experience;
• Whether a collaborative law training course has been undertaken by the lawyer;
• Has the lawyer completed a mediation course;
• Is the lawyer an accredited family law specialist; and
• Whether the lawyer has a commitment to observing the relevant guidelines including the Best Practice Guidelines for Lawyers doing Family Law Work.
• It has also been recommended by the Family Law Council that consideration should be given as to whether there needs to be accreditation associated with collaborative practice in order to stream line the work to be undertaken by lawyers.

To become a collaborative lawyer there needs to be a transformation, dispensing with the more traditional adversarial skills that we acquire early on in our professional careers, and moving towards being a lawyer with new collaborative skills and knowledge. Our skills as litigators are so deeply entrenched in the way that we practice, that it requires a conscious effort to transform into a collaborative lawyer. Pauline Tesler describes this as "making the paradigm shift".¹⁶

Lawyers need to ‘retool’ to become a skilled collaborative lawyer which can be seen in four steps:

1. "Retooling one’s own automatic adversarial thoughts, assumptions, reactions and language;
2. Retooling how one works with the client;
3. Retooling how one works with the other lawyer, the other party, and other professionals;
4. Retooling how one manages conflict and guides negotiations in settlement meetings."¹⁷

Language also plays an important role and forms part of the paradigm shift. Our language as litigators engaged to fight the opposition as gladiators does not match the work done as a collaborative lawyer engaged in cooperative and respectful settlements.

Once the conscious effort is made to retool oneself, establishing a practice could take the form of some of the following steps:

1. Training in collaborative law should be undertaken in order to fully understand the process in offering the service to clients and from the perspective of best practice. Consider also ongoing training to further improve your knowledge and skills.
2. Consider arranging for other professionals in your community to also train in team divorce or in the interdisciplinary model so that you are able to offer clients different models of collaborative practice to suit their individual needs.
3. You should establish or join a practice group with your colleagues whom you can form relationships with. The role of the practice group is integral to the success and ethical practice of collaborative law. It is the vehicle by which professionals can establish relationships with each other, meet regularly to share experiences arising out of collaborative cases they are running, seek input, guidance and mentoring from each other and agree on the basis on which the members of the practice group will deal with each other when acting together on a collaborative matter. Practice groups can range in size from very few to much larger groups and one practitioner may belong to several groups. Practice groups make their own rules, or indeed some have few or no rules about membership, from restrictive rules relating to years of experience and minimum training to the more general rules requiring minimum participation in practice group meetings.
4. Consider becoming a member of any formal organisations.

   1. The International Academy of Collaborative Professionals (IACP)¹⁸ was established in 1997 by Pauline Tesler, Peggy Thompson, Nancy Ross, David Green and Karen Russell. The organization provides support to collaborative practitioners internationally including resource material and a publication that issues quarterly.
   2. Currently there is no Australian organisation established with a national voice to address issues at a national level which is one of the issues being looked at and to be reported on by the Law Council of Australia Collaborative Practice committee.
   3. Sates within Australia including Queensland and the Australian Capital Territory have organisations to support and encourage the growth of collaborative practice through education, the provision of resources and training, networking and marketing. For example, Queensland Collaborative Law¹⁹ has been established to promote collaborative law and to support and train lawyers in its practice. Queensland Collaborative Law adopts the standards for collaborative practitioners as set out by the peak international body for collaborative law; the International Academy of Collaborative Professionals (IACP). Currently there are 35 members, 21 trained members eligible to call themselves collaborative lawyers or collaborative professionals. Of the 35 members, all are lawyers except for 3 who are accountants.²⁰
5. Consider individual or practice group marketing initiatives such as an advertisement in the local newspaper or a brochure containing information about collaboration so as to generate community awareness of the service that you are providing.

Collaborative practice is about forming relationships, (not just with clients) but with the lawyer on the other side, with the members of your practice group and with professionals of other practice groups with a view to the sharing information about collaborative practice to improve your skills and knowledge.

The Attorney General, on 31 January 2006 gave the Family Law Council a reference on collaborative law to advise how the Government and the legal profession can assist the promotion of collaborative law in Australia with consideration given to:

• what, if any, legislative changes need to be made to support the practice of collaborative law;
• what, if any, changes to court processes need to be made to assist collaborative law;
• what, if any, changes need to be made to the legal aid system to promote collaborative law; and whether it is desirable to have national guidelines for the practice of collaborative law and, if so, how would they best be developed.²¹

The Family Law Council has recommended that in conjunction with the Law Council of Australia, a working group be formed to further consider for discussion the draft guidelines attached to the Report regarding collaborative practice to develop practiced standards, explore how cross-sector professional relationships may be strengthened to facilitate collaborative practice and to consider how best to develop specialist accreditation to achieve consistent standard of Australian collaborative practice.²²

The other recommendations made in the Report are:

• Whether the regulations referred to in section 60I(8)(aa) of the Family Law Act 1975 should include a provision that when a family dispute resolution practitioner is deciding to grant a certificate, consideration should be had to a person’s participation in a collaborative law process.²³
• The Law Council of Australia is to consider disseminating information about collaborative practice and list of collaborative practitioners to Family Relationship Centres and community-based service providers of family dispute resolution.²⁴
• The Family Law Act 1975 should be amended to provide confidentiality of communications in the collaborative process similar to protections afforded for communications in family dispute resolution by sections 10H and 10J of the Act.²⁵
• The Family Law Act 1975 should be amended to allow for the enforcement of collaborative contracts regarding family law disputes.²⁶
• Courts exercising family law jurisdiction should manage cases where proceedings have been commenced but parties wish to undertake collaborative process, in the event a resolution is not achieved, priority is not lost in the allocation of a hearing date.²⁷
• National Legal Aid is to monitor developments in collaborative practice.²⁸

In light of the support given to collaborative practice by the Federal Attorney General which has been previously referred to, one can expect this method of dispute resolution to gain further momentum in Australia.

Of the collaborative law training courses that I have undertaken in this area of dispute resolution²⁹, all of the experienced trainers have stated that from their experience, collaborative practice results in clients being happier, more satisfied with their settlements and this results in less client complaints. Further, lawyers are enthused, re-energised and more satisfied as a result of the ‘therapeutic’ work being performed for clients during very traumatic and harrowing experiences arising from the break down of marriages.

Pauline Tesler states that from her experience:

"Ten years of experience with collaborative law indicates that no other dispute-resolution modality presently available to divorcing families matches collaborative law in its ability to manage conflict, elicit creative ‘out of the box’ solutions, and support parties in realizing their highest intentions for their lives after the legal process is over. Not least of the benefits of collaborative practice is that is seems to evoke in those lawyers who embrace it a rekindled joy in the practice of law. Effective collaborative lawyers find that what matters most in one’s personal value system can finally be brought to the office, and that integrating one’s deeply held personal values into one’s work not only is possible in this model, but actually improves one’s effectiveness in collaborative law. Good collaborative lawyers recognize that they are, at last, members of a helping and healing profession."³⁰

Some other key benefits identified with this form of dispute resolution are summarised as follows³¹:

• Collaborative law matters may cost less in time and money than say adversarial representation;
• Collaborative law may lead to better settlements as a result of enhanced creativity during the negotiations as the settlements are tailored to meet the interests and needs of clients;
• Collaborative law may lead to less stress and emotional impact on clients and children. The process enables parties to focus on settlements (rather than being embroiled in fighting), where negotiations are based on interests, rather than in the adversarial approach which reinforces antagonism between spouses and provides them no opportunity to co-parent;
• Collaborative law may lead to less stress on lawyers. Stress and burnout are usually faced by lawyers who deal with adversarial matters.

There appears to be many benefits associated with collaborative practice that makes the model very attractive to a family law practitioner. However, there are disadvantages and risks which we should also be wary of which are beyond the scope of this paper. However, some examples of the risks faced are: where lawyers in the process must be disqualified if a client elects to pursue his or her right to litigation, creating additional cost to the parties who must then retain new lawyers; consider also those clients who are really not suited to the process who later on, create difficulties by not disclosing information to their spouse or someone who acts in bad faith to delay the process purposely. There is also a need to ensure that experienced and trained professionals participate in offering this service to lessen any damage to the future success of this process.

Despite the ethical issues associated with collaborative practice giving rise to debate and consideration amongst the legal fraternity, the international success of this model of dispute resolution in conjunction with the support of the Federal Attorney General and the further steps to be taken nationally, could lead to collaborative practice being a significant part of our Australian legal culture in the future.

The process is consistent with the reforms to the Family Law Act calling for parties to engage in alternative dispute resolution methods. As the word spreads across the community about collaborative practice, clients may start to demand this model of dispute resolution. We, as a profession, will need to be ready to meet the needs of those clients who seek a more respectful way to deal with their matters rather than the ‘fight to the death’ mentality that has dominated family law cases to date.

© Hopgood Ganim

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