What does Collaborative Practice involve?
- You and the other party will each retain a lawyer to
assist you throughout the process.
- Your lawyer will discuss with you in your introductory meeting or telephone call whether your case is suitable for the collaborative process.
- You, the other party, your lawyers and the case manager/coach will all sign a Participation Agreement setting out the ground rules for the collaborative process and stipulating that if either client commences court proceedings, both collaborative lawyers will be disqualified from representing either client.
- Underpinning the collaborative process is an understanding that you and your partner, (and your respective lawyers), will act in good faith, be open and honest in your dealings with one another and respect the fact that different views will need to be expressed to achieve a fair settlement.
- Parties will be asked to give full and frank disclosure of all facts and documents relevant to the dispute.
- The majority of the negotiations will take place at “5 way” face-to-face meetings between you, the other party, the lawyers and a case manager/coach. Correspondence between lawyers is kept to a minimum.
- The meetings are minuted, current action points agreed and a date for the next meeting set.
- Where appropriate, you will be encouraged to draw on the skills of other specialist advisers, such as accountants, financial advisers and child consultant.
- Once a settlement is reached, the lawyers will draw up a Settlement Agreement which will usually be submitted to the court for approval and made into a consent order.
What is the difference between collaborative law and mediation?
- Mediation involves a neutral third party who facilitates discussion between you and does not give legal advice. If lawyers are present they give advise to their own client only to protect that client's position.
- In collaborative practice both parties and lawyers are present in the meeting with the case manager/coach. All attendees contribute their opinions, ideas and advice openly to the meeting. Each lawyer supports their own client but the other party will also be hearing what the lawyer has to say and can reach a balance and informed view of the matter.
What happens if one of the parties doesn’t give a full and frank financial disclosure?
- This can of course happen as it does sometimes in mediation or in the conventional legal process. Under the terms of the Participation Agreement, the lawyer must withdraw from acting for their client if he/she has withheld or misrepresented information intentionally, or is participating in the process in bad faith. Likewise, it is open to your collaborative lawyer to advise you to withdraw from the process if they do not consider that the other party, (or indeed their lawyer), is keeping to the terms of the agreement.
- If after a settlement agreement has been reached through the collaborative process, you discover that the other party has failed to disclose relevant information, then collaborative law is no different from any other negotiated settlement. If the outcome of that settlement would have been different had the information been available, it is open to you to seek to overturn the agreement, even after it has been approved by the court.
What about confidentiality?
- All professionals involved in the collaborative process are bound by the professional conduct rules of their respective professional organisations and have a strict duty of client confidentiality.
- Any discussions or documentation, (with the exception of financial disclosure documentation see below), are legally privileged and conducted on a “without prejudice” basis which means that they cannot be used in court.
- This confidentiality will only be overridden where any of the professionals involved have a professional obligation to make a report to a relevant authority, for example, it can be waived if parties agree to it or if professionals consider there to be a risk.
- If the collaborative process fails, you and your partner may not use any of the information or documentation generated during the collaborative process other than that relating to financial disclosure.
Why can’t we go to court?
- Participants in a collaborative negotiation agree not to go to court and cannot use the threat of going to court as a means of coercing the other party to agree to or to accept a position. This assists to facilitate the conduct of negotiations in good faith and to honestly consider the interests of the parties. Going to court is only possible if there are urgent reasons that require it (eg: to preserve an asset) and only after the collaborative process is terminated and new legal representatives appointed.
- By agreeing at the outset not to go to court, you, the other party and the lawyers can be encouraged to reach creative settlements, (of course having regard to the legal position), but having you and the particular interests of all the parties involved at the forefront of any settlement proposals.
Why can't the lawyers act in court if the collaborative process fails?
The nature of collaboration means that it is an open and frank exchange of ideas and advice between all parties which is what makes it so successful. The lawyers involved will therefore have heard and said things which would be privileged in a more conventional court process and this means that they cannot act in subsequent litigation. It is part of the parties' commitment to seeing the collaborative through all the hurdles to reach an end result that they commit this condition.
How much will it cost?
- Our lawyer members and other professionals have agreed to a joint scale of charges which compare favourably to those they charge for more conventional work and is a mark of their commitment to this process. The current scale will be provided to you by the professionals that you seek to retain.
- As long as you and your partner act in good faith, provide the information requested of you within the timescales agreed and cooperate in the process, the collaborative process will inevitably be quicker and cheaper than a dispute resolved by a court hearing.
- The practical issue of how the costs of the collaborative process are to be met can be addressed at the first 5 way meeting.
How can we get a collaborative case started?
- Many lawyers in Sydney and in other areas of New South Wales, as well as other States in Australia offer collaborative law as an option in their dispute resolution services in the areas of family law, civil disputes and commercial law. It is essential that both parties have collaboratively trained lawyers. Most Collaborative Lawyers (and other professionals) belong to practice groups and are members of Collaborative Professionals (NSW) Inc.
- You can get a collaborative matter started either by accessing our contact details on our Contact Us page or by selecting and getting in touch with one of our lawyer members shown on our Find a Practitioner page.
- If you start by contacting a coach/manager they can contact the other party to propose and talk through the advantages of the collaborative process.
- Alternatively, if you start through a collaborative lawyer, they can write to the other party suggesting collaborative law as an attractive means of resolving your dispute and invite him/her to participate.
- Otherwise, you can talk about the process directly with the other party and direct them to this website for all the necessary information, then you can both.