Known as Collaborative Practiceâ€ in Australia, the concept of Collaborative Law had originated in Minnesota, USA in 1980 through the initiative of Stuart Webb, a Family Lawyer and Mediator from Minneapolis, Minnesota. His experienced in litigation procedure particularly in cases involving separation, divorce and family dispute gave him the idea to come up with the most practical means in resolving family conflict outside of the court.
This unique collaborative dispute resolution procedure had spread in Canada which is called Collaborative Processâ€ and adopted by the US, UK, Europe and Australia in 2002 by the then Justice Robert Benjamin of the Family Court of Australia. This is a form of family dispute resolution (FDR) where resolutions are sought jointly by the parties themselves with the assistance of trained collaborative lawyers and professionals.
The collaborative process had been useful in facilitating a broad range of family issues including marital conflicts, parenting, divorce, financial planning, child custody and support and drawing up of contracts to govern pre and post marital negotiations during break up. In Canada, 95% of cases that used collaborative process in settling family disputes had emerged successful.
Collaborative Practice; the concept
a. This is an out-of-court proceeding. The parties meet, negotiate and enter into an agreement without court intervention.
b. The Collaborative process is interest-based model. Interest-based negotiation techniques allow parents to focus on their children’s needs by working with other collaboratively trained professionals like child psychologists, counselors and therapists. The parties must be able to comprehend their role in the family, learn the basics of parenting and focus on promoting the well being of their children, and preserve the concept of a family. This is opposed to a right-based model where the parties resort to court for resolution.
c. Clients are in control of the process. It is the parties who decide every step of the proceeding. The outcome is governed not by the lawyers, but by the clients. When negotiation fails, the parties can elect to abandon the collaborative process at any time and proceed to litigate their case.
d. The process is fair to everyone. Collaborative process does not favour one party and exclude another. However, in circumstances where there is a history of domestic violence, the collaborative process is not recommended.
e. The collaborative process is future-focused. In formulating resolutions to the issues surrounding the couple, the parties must consider the “needs” of their children and the family as a whole. They must come up with their own terms that are realistically attainable for the benefit and interest of the family.
f. Settlement first before court. The concept of collaborative practice does not totally dispense the idea of court initiated settlement. However, the parties are given the chance to resolve their differences and come up with a fair settlement agreed to by the parties. It is only when settlement is not possible where the parties can seek the intervention of the courts.
Collaborative Process; the characteristics
The couple, who in the end decides to end their relationship, can now do it freely with the assistance of trained collaborative lawyers and professionals without going through court proceedings.
In general, the procedure is voluntary, confidential, and transparent and a lawyer assisted undertaking.
a. Voluntary. The parties must come voluntarily and open for any commitments, arrangements and concessions that will govern their marital relationship before, during and after separation.
b. Confidential. The procedure is confidential and adheres to Section 131 of the Evidence Act 1995. Thus, information obtained during collaborative meetings cannot be used as evidence, unless with the consent of the parties;
c. Transparent. The parties are encouraged to be open, truthful and transparent on giving information, in making demands and what to expect out from their relationship.
d. Lawyer assisted. The parties entering the collaborative process must be assisted by a lawyer trained for collaborative practice. The lawyer acts as counselor-at-law in a collaborative atmosphere.
Collaborative process; the requirements
The parties make their own decision and enter into agreement voluntarily. Since the procedure is voluntary and without court interference, the proceeding must be governed by the parties and free from outside interference despite of the presence of the lawyers assisting the parties.
Representing Lawyers must be trained to conduct collaborative process. In order to understand fully well the objective of collaborative practice, lawyers participating in the process must be undergo introductory collaborative training before they can join and hold themselves as collaborative practitioners.
All expenditures must be agreed by the parties. The parties must pre-approve expenditures before the collaborative process starts and agree on how the compensation of the professionals and collaborative lawyers are to be paid.
The collaborative lawyer and professionals must be neutral.
Collaborative process; how to start
To start the process, the parties must be personally involved and joined the proceeding voluntary. The collaborative process is simple and must follow certain procedural guidelines:
(1) The parties must sign a â€œparticipation agreement. The agreement must state and embody the following:
That during the process the parties will not litigate or threaten litigation in relation to the dispute.
Clients and lawyers have a duty to make a full and open disclosure on all matters relevant to the issues. Clients should lay down their cards on the table. They should tell what they want and what to expect out of the proceedings. Lawyers should refrain from making preferences and leave the entire proceedings at the hands of the parties.
The parties can call on neutral experts or professionals into the process to reduce conflict and support the parties.
If the collaborative process is not adhered to, or a failure and/or the process do not resolve the dispute, the agreement may be terminated.
(2) The “process” interview. This is the process where the collaboratively trained lawyer conducts their first interview with their client. They discuss all possible means of achieving settlement and evaluate the possibilities of the outcome. In the process interview, it is important that it is the client who decides and the lawyer refrains from making preferences for a specific method of dispute resolution.
(3) Four way meeting. It is an informal meeting arranged primary by clients. The meeting will be attended by the opposing parties and the assisting lawyers. The meeting place must be neutral where parties are comfortable to face each other.
(4) Final meeting. This signals the end of the collaborative process. This time documents are prepared detailing the agreements the clients have reached during the series of four-way meeting. The client and lawyer will discuss the things that should be undertaken to implement what has been agreed by the parties.
The Benefits of Collaborative Practice
The Family Court had been searching for means to develop a system of settling disputes in the most efficient and convenient way to parties. For many years, it has been the practice of individuals to go to court to air their grievances. However, the lengthy court proceeding is agonizing and stressful that adds burden to already emotionally strained parties. For this reason, the collaborative process is a welcome development in lieu of court litigation.
The advent of Collaborative Law system of procedure in settling disputes is a healthy innovation in the judicial system. In the process, it is the Family law that benefited from the collaborative process and/or mediation procedure. It does not only reduce the case load of courts, but also provide a wider atmosphere where opposing parties can seek for alternative forum (out of court) to settle their differences and find solutions to issues. In many jurisdictions, collaborative law has been considered a better option to court proceedings not only in matters of family disputes, but in incidence where the parties to a case want to settle their difference out of the court.
At the onset, the collaborative practice gives the parties freedom to deal and negotiate with each other openly and jointly agree on matters according to their own terms with less pressure. The presence of collaborative lawyers and trained professionals will serve as mere catalysts to speed up the settlement process. It is a team effort, an interest-based model, whereby negotiation techniques are geared towards the interest of the family and children as a whole.