What is Collaborative Practice?
Collaborative Practice involves the parties and their collaboratively trained lawyers meeting to negotiate a property settlement and/or children’s issues without going to court, preparing court documents and complying with court rules and procedures. Importantly with collaborative practice, all involved parties and advisers:
- commit to proceed honestly, respectfully and in good faith for the parties and the process;
- agree to negotiate a mutually beneficial settlement;
- create shared solutions taking into consideration the interests and priorities of both parties; and
- engage in an honest and complete exchange of information and documents.
Throughout the process the separating couple will be:
- present for all negotiations and for all legal advice that is given;
- given the option of having a collaboratively trained financial adviser present who can assist with gathering information, preparing a list of assets and reality testing various financial options. The financial adviser remains neutral and does not give advice; and
- given the option to have a collaboratively trained relationship counsellor attend to assist in dealing with children’s issues and the emotional atmosphere. The counsellor also remains neutral.
When a resolution is reached, which may take one or a number of meetings, orders can be drawn and sealed by the Family Court so they become enforceable. At the start of the process the lawyers for each party provide a retainer agreement to their client which sets out the scope and duties of the lawyer. If settlement cannot be reached or if one party decides to terminate the process and head to court then the lawyer’s retainer is terminated and they are disqualified from representing the party in court due to the frank and open nature of the process. However, this will lead to more costs being incurred.
Advantages?
- There is no litigation so no court timetable to follow.
- The issues and solutions are not limited by the Family Law Act 1975.
- The parties communicate directly with each other.
- The parties, not a judge, control the process including the timetable and make the final decisions while having the support and guidance of their own collaboratively trained lawyers, financial advisers and relationship specialists.
- The parties can create shared solutions acknowledging the highest priorities of all parties.
- All involved parties and advisers work towards a mutually created resolution of all issues.
- The process is private so it can be attractive to high profile people.
- It can lead to ongoing constructive communication between the parties into the future, which is vital when children are involved.
- It minimises hostility and conflict.
- The overall cost should be less than the court process, but it may depend on how many meetings are held to reach a resolution.
- It is flexible and allows for creative solutions.?
Disadvantages?
- If settlement cannot be reached for whatever reason and court proceedings are issued, the lawyers are not able to represent the parties – this adds to the costs.
- Each party gives up their right to unilateral advocacy, access to the court system and to object to producing documents and/or providing information that is relevant and appropriate to divulge.
- If a Iawyer believes that the other party is not acting in good faith, perpetuating dishonesty or is using the process to delay litigation then the lawyer can withdraw or terminate the process.
- The lawyers cannot guarantee that the parties will adhere to the Collaborative Practice principles or that a resolution will be reached.
It’s not for Everyone
The lawyers, financial advisers and relationship counsellors have to undertake training to be able to participate in the process. Much of the success of the collaborative process depends on them initially undertaking an assessment as to whether the case and the client are suitable. The parties need to feel comfortable being in the same room and talking face to face to their former partner while they address difficult personal and emotional issues. They have to be able to consider the needs and interests of the other party and anything that clouds this ability could make the process futile. If you need a collaboratively trained financial adviser to assist with your property settlement, please call Karen Nyberg on 0417 848 824. She can also recommend suitably trained and experienced lawyers and relationship counsellors to be involved in this process.
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What is Collaborative Law? Watch this video to find out more.
