Collaborate means to work together, especially in a joint intellectual effort.
The Collaborative Practice Model
Collaborative Legal Practice is a way of dealing with disputes by bringing the parties to the dispute together so that they can jointly work through the issues and resolve it respectfully and with the minimum cost emotionally and financially.
Each person has the support of their own lawyer but all legal advice is given in 4 way meetings so that both people are working with the same information.
The key points of difference in Collaborative Law are identified in the Collaborative Law contract that is signed by the parties to the dispute and their lawyers.
The main elements that distinguish Collaborative Practice are an agreement to:
- negotiate a mutually acceptable settlement without going to court to have issues decided
- maintain open communications and information sharing
- create shared solutions acknowledging the highest priorities of all
This is quite different from traditional law where the threat or reality of going to court is used to resolve points of difference.
What’s wrong with going to court?
There isn’t intrinsically anything wrong with going to court and in some circumstances it is the only way to reach a resolution. That said there are several reasons why we think it isn’t the preferred option if a collaborative resolution is possible.
- It is much more expensive – there are court costs, appearance fees for barristers and your lawyer.
- Legal conventions make frank and open discussion between the parties of to the dispute impossible. Conversation takes place in a series of he said/she said negotiations through respective lawyers. This opens the door to misinterpretation, confusion and errors.
- It takes longer – you have to wait for mentions and court dates meaning resolving all issues can take months and even years
- You give up control over the outcome – the resolution of the issue, which you are going to have to live with comes down to the persuasive powers of your representatives, the judges interpretation of the relevant laws and precedents set down by previous judgements. In the Collaborative Process you are able to be creative and come up with solutions that work for you and the other party.
Maintaining open communication
I’ve touched on open communication in the last point but the approach taken in Collaborative Practice is so radically different from any other legal situation that it is worth focusing on a bit more.
When all parties sign the Collaborative Contract you agree to be forthcoming with any relevant information and to correct any mistakes made. That means:
- volunteering what you know is relevant not holding back unless you are asked specifically.
- correcting any mistakes others make that you identify.
- This applies to your lawyer as well so if one lawyer notices that the other lawyer has made a mistake or misunderstood something then they are bound to point out the mistake.
Basically you promise not to take unfair advantage of the other party.
The other key element of maintaining this open communication is that all real discussion and specific legal advice is given during the 4 way meetings. This ensures that the “Chinese whispers” aspect of traditional legal processes doesn’t occur. Both parties and both lawyers are involved in all negotiations which leads to much quick resolution of points of difference.
Information Sharing
Information about your legal position is shared in the 4 way meetings as well as information about your respective positions.
In traditional disputes there is a “discovery” process where expensive investigations and enquiries are made to discover the relevant financial positions of each party. Sometimes parties attempt to hide assets or income sources to avoid them being included in the settlement.
That behavour is completely incompatable with Collaborative Practice. In fact if your lawyer discovers that you are hiding relevant information such as assets that you haven’t disclosed they are bound to unilaterally withdraw from the Collaborative Process bringing it to an end. If your intention is to cheat the other party by hiding assets you’d be best to try your luck with the traditional legal process.
Because Collaborative Law is based on trust there is no need for expensive discovery processes. Each party is responsible for providing information about their current financial situation and working through an equitable division of assets.
Independant Experts
Often there is a need for expert advisers such as financial advisers, valuers or children’s specialists. In the Collaborative Process these neutral experts are brought into the team to work with both parties. Once again this saves on cost and improves communication.
Creating Solutions
Traditional negotiation is all about establishing positions and then clawing back concessions from the other party until you get to a point of settlement – often leaving neither party satisfied.
Collaborative Practice avoids establishing positions at all. It begins with establishing interests. In this context interests means the things that you really want or need.
For example
In a Family Law matter where a couple are divorcing each party has an interest in having somewhere to live. If there are kids involved then each party will generally have an interest in the children having a suitable place to live when they are with each parent.
If you are having a positions based dispute focusing on what your “rights” are or what percentage of assets goes to whom then your real interests can get lost or even unidentified in the whole process. That means your energy and focus goes into fighting for something that might leave the other party and your children in an unacceptable position.
Collaborative Law avoids all of that and starts with identifying what you already agree on and what your interests are. This allows everyone to focus on developing creative solutions which make sure that everyone’s interests are protected.