Collaborative Law: A New Approach for Resolving Family Disputes Out of Court

The use of Collaborative law is a relatively new concept in family law matters in Australia compared to other forms of alternative dispute resolution, such as mediation and conciliation.

The resolution of family law matters through the collaborative approach focuses on the parties and their lawyers negotiating directly without the need for an independent mediator.

What are the differences between the Collaborative approach and Mediation?

There are a number of key differences between the Collaborative approach and mediation in family law disputes.

• Unlike mediation, there is no independent third party that is used to help conduct the settlement discussions. Instead, all parties and their legal representatives attend face-to-face meetings to discuss the issues in dispute and establish an agenda of the steps to be taken to help resolve the various issues.
• As part of entering into the collaborative approach, all parties and their lawyers sign an agreement which provides that all parties will use their best endeavors to resolve the matter without going to Court and will not threaten Court actions as a way of forcing the other party to come to an agreement.
• If the parties are unable to resolve their matter through the collaborative approach and either party commences Court proceedings, the lawyers and law firms involved with each party in the collaborative approach are prevented from continuing to represent their client in the proceedings. This aspect of the collaborative approach encourages parties to be open and flexible in their approach to resolve the matter and provides a good incentive for lawyers to work hard to help their respective clients arrive at an amicable solution.

How is the role of your lawyer different in the collaborative approach?

Collaborative law can only work if all parties are represented by lawyers who are trained in collaborative law.

In Australia, most lawyers are trained in what is traditional known as the “adversarial” approach. In essence, this approach means that your lawyer will argue your case in a way that attempts to persuade and prove to the opposing lawyer, and ultimately the Court, that your position is “right” and the other party is “wrong”. The adversarial approach of lawyers in mediation can also result in the process being drawn out as the mediator has to assist the parties and their lawyers to focus on resolving the issues in dispute and not arguing about who is “right” and who is “wrong”.

When both parties’ lawyers adopt this approach, it can often be difficult for parties and their lawyers to negotiate directly without the assistance of an independent mediator to help facilitate the flow of communications between the opposing parties. Lawyers that use the adversarial approach when participating in mediation are also likely to release information in a very careful and strategic way in order to help maintain a bargaining advantage for their client.

In the collaborative approach, both lawyers have been specially trained in the skills needed to generate options and strategies to help parties resolve their dispute. This means that a mediator is not required to control the negotiations, and the lawyers on both sides work together, using cooperative strategies which create a positive, “let’s do this together” environment conducive to settlement. The absence of a mediator also allows the lawyers to retain control of the negotiations in such a way as to ensure that both lawyers can still argue for the best outcome for their client which satisfies the interests of both parties to a workable degree.

The collaborative approach also focuses on the need for each party to get all their ‘cards on the table’ at an early stage, so that well-informed options can be generated and appropriate decisions made. In particular, as parties in the collaborative approach have made a proactive decision to participate, there are fewer issues about information being withheld or hidden by one or both parties.

As part of the collaborative approach, the lawyers will also assist the parties to develop a level of trust in the collaborative approach and in the other party so that the parties can work together towards a common goal of resolving the dispute amicably. Also, because lawyers are responsible for taking minutes of the negotiation sessions and debriefing their clients, they can offer a better all round service which goes beyond dealing with the purely legal issues involved in the dispute.

What other professionals can be involved in the collaborative approach?

As part of the collaborative approach, the lawyers may suggest that other professionals are brought in to help negotiations or provide specific information or advice with the consent of the parties. The type of professionals which may be appropriate will depend upon the circumstances of each individual case.

For example, if your family law matter involves the division of complex property or commercial assets, experts such as financial advisors, property valuers, forensic accountants or taxation specialists may be of assistance in resolving issues of the value of certain assets or advising both parties on the financial implications of particular settlement options. Alternatively, if your matter involves the care of your children or a child with special needs, family report writers or psychologists may also be brought in at an early stage to provide advice on the types of care arrangements which may be in the child’s best interests and help parties to address the emotional issues involved with the breakdown of their relationship.

Any professionals brought in as part of the collaborative process are bound by the same rules as the lawyers, meaning that they must not act for the parties if the matter goes to Court. For this reason, as the experts are agreed to by the parties and advise both sides as to how they can reach common goals, there are fewer issues surrounding the competing views of ‘independent’ experts engaged by each party to advance their case which can sometimes occur when preparing a family law matter for Court.

Is the Collaborative approach right for you and your family law matter?

For the collaborative approach to be successful, all parties must be willing to be proactively involved in the resolution of the dispute and wish to maintain control of the negotiations with the assistance of proficient legal advisors and other professionals where appropriate. Parties must also be prepared to make considered decisions when presented with relevant and accurate information. Most importantly, there must be a level of mutual respect and trust between parties which underlies the negotiation process.

In family law matters, especially those involving children, there will often be an ongoing relationship between parents which will continue long after any settlement is reached or an order made by the Court. This means that a flexible and future-oriented method of arranging future parenting roles can be of great assistance to parties who wish to maintain a respectful relationship with their former partner.

The collaborative approach offers some fundamental characteristics that are well suited to the resolution of family law disputes. Collaborative negotiations can achieve timely, fair and amicable outcomes with the primary focus being on the best interests of the children. Lawyers in the collaborative approach also conduct the negotiations in a calmer, more trusting environment compared to mediation or when going to Court.

The collaborative approach for family law matters will not be suitable for all clients or all types of family law matters. Particularly in circumstances where there are serious issues of domestic violence, child abuse, entrenched conflict or undisclosed assets, the collaborative approach may not be appropriate.

Ready to take the next step or want to know more?

While we recognise that the collaborative approach will not be right for every client or every family law matter, where parties’ relationships have broken down and parties remain willing to communicate openly about how the matter can be resolved, collaborative law offers a viable alternative for clients to resolve their family law matters without going to Court.

If you or your partner are considering using the collaborative approach for your family law matter please contact our office so that we can discuss the collaborative approach with you in more detail and answer any questions you may have.

We can also provide you and your partner with a list of other family lawyers who practice collaborative law who may be appropriate to represent your partner as part of the process.

Neal Wood
Solicitor, James Noble Family Law