Collaborative law is a method of alternative dispute resolution
that keeps separated couples out of court, and keeps them in
control of the outcome.
It is a fairly new method in Australia and is hoped to provide a
way around court delays, increasing bitterness, escalating legal
bills and a stranger brokering a deal or deciding the fate of
peoples' finances and children.
The method involves a series of round table meetings with the
husband and the wife, and their lawyers, working together to
analyse the issues to be dealt with, discovering what is important
to each of the husband and the wife, exploring options to address
those issues and then devising an outcome acceptable to both the
husband and the wife.
The method is client driven, with the lawyers assisting and
still advising on the same laws that apply if the dispute were to
go to court, whether the partners were married or in a de facto
Accountants, financial planners, counsellors and divorce and
life coaches can be called in to assist, by helping to make the
most of the assets to be divided and/or helping the husband and
wife communicate more effectively and to better co-parent.
There are some rules. Both lawyers must be trained in
collaborative law, as must any other experts who become involved.
Both partners must first agree to use the method and everyone,
including the lawyers and experts, should sign documents at the
outset agreeing to be honest, respectful and to act with
It goes without saying that any relationships marked by actual
or feared violence or abuse, extreme acrimony or simply one partner
wanting to blame or shame the other in the process, will not be
assessed by the lawyers as suitable for collaborative law.
The lawyers should not use the method as a fact finding or
evidence gathering exercise. If it is only used for those purposes,
no agreement will be struck and it is likely that the partners will
end up having to go to court. The lawyers cannot represent their
clients in court and the partners will have to get new lawyers.
That builds in an incentive for the partners and their lawyers to
work earnestly towards reaching an agreement.
Collaborative law in family law has been widely used for almost
20 years in the US, where it began, and strong participation rates
have been seen in London recently.
A core of collaborative family lawyers in both the Sydney CBD
and Western Sydney have acknowledged the wisdom of the method
devised by a Buddhist lawyer, and are working together to see that
collaborative law is used more often for the benefit of their
Swaab was recently named a 2009 Winner in the
ALB Employer of Choice awards, and was winner 'Best Law Firm in
Australia (Revenue < $20m)' and 'Attribute Award for
Exceptional Service (Australia Wide)'
in the 2008 BRW- Client Choice Awards.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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