In this series on Alternative Dispute Resolution (ADR), Nichola Di Muzio, Thynne + Macartney's head of Family Law, takes a look at the evolution and application of different ADR methods used in family law. In this edition, Nichola discusses collaborative law.
We're all collaborative anyway, aren't we?
Well, no.
Collaborative Practice was launched in Brisbane with enthusiasm and with the support of top tier firms and the Queensland Law Society and Bar Association. Protocols were issued and training courses were offered from time to time. I undertook training at UTS (in Sydney) in November 2009. By this stage, there was a keen core group of Brisbane practitioners promoting this approach to resolving family law disputes. That same core group is still at the forefront of Collaborative Practice ("CP"), despite other interested practitioners throughout Queensland undertaking training.
What is collaborative law?
Collaborative Law is a form of alternative dispute resolution whereby parties agree at the outset not to go to Court. A separated couple and their lawyers come together in four-way meetings and work cooperatively to reach an agreement about their legal, financial and emotional needs. The focus of collaborative law is on reaching a mutually acceptable resolution to the problem while minimising conflict.
With the knowledge that there will be openness and honesty from both parties without the threat of Court proceedings, it enables a separated couple to focus on the important issues such as their financial security and the best interests of their children.
Many (non-collaboratively trained) practitioners seem to adhere to the notion that Collaborative Practice is more a state of being than a legal process. Certainly, it's a great thing for lawyers to work well together and be more respectful in everyday dealings with each other. However, there still exist those lawyers who will refuse to take a telephone call to discuss matters and who prefer to send lengthy accusatory letters to their opponents, threatening court proceedings at every turn.
There was much discussion at a recent Qld Collaborative Law Practice Group meeting about why CP has not been taken up in the same way as mediation. Many talked about looking for the "ideal client", while at the same time directing more "unsuitable" candidates into the court system. Traditionally, only certain types of separated parties were seen as being suitable for CP. Others blamed the 'disadvantage' of having to cease to act for a client if court proceedings were initiated. Of course, this also can be seen as an advantage as it means that lawyers will work harder to settle in a collaborative way, rather than lose the client. It shows how committed the practitioners are the process.
The records of Qld Collaborative Law indicate that this association has 127 full members (which include lawyers, accountants, psychologists, mediators and financial advisors). This is heartening as many of the practitioners are yet to have a collaborative matter of their own, despite having completed their first CP training many years ago. There seems to be a ground swell of interest in this process, particularly as the stalwarts have realised that there can be a distinctively Australian model of CP instead of adopting US styled models which have been very successful in the US but don't fit with the Australian character.
Video by Esprit d'Entente
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