Collaborative Law – The way forward when there are significant Court delays Court or Primary Dispute Resolution

27/12/2018

In Family Law property divisions and parenting disputes it is often thought that the only method of resolving these disputes is to commence proceedings in the Family Court of Federal Circuit Court of Australia and get the Judge to decide.

There are other forms of resolution.

• There is primary dispute resolution which involves processes such as counselling, mediation and arbitration or other means of conciliation or reconciliation to resolve matters in which a Court Order may otherwise be made.  In other words, not resolving a dispute by proceeding to a hearing in front of a Judge.  
• There is negotiation by parties and lawyers and documentation of settlement by Application for Consent Orders or Binding Financial Agreements.
• An alternative to Primary Dispute Resolution and Court procedure is to use Collaborative Law. 

What is Collaborative Law?

Collaborative law is a form of Lawyer assisted dispute resolution.  Collaborative law creates a new role for Lawyers which includes skills similar to those used in Mediation where Lawyers work together (and sometimes in conjunction with other collaboratively trained professionals) to facilitate child and family focused discussions between the parties with the aim of reaching a mutually acceptable negotiated settlement of the issues which are in dispute.

The commencement of the process will require the parties and their Lawyers entering into a written agreement.  That written agreement provides that during the process the parties will not litigate or threaten litigation in relation to the dispute and the Lawyers will not advise the clients to threaten litigation.  If the collaborative process is not adhered to or the process does not resolve the dispute, the agreement is terminated.  The significance for the parties is that the Lawyers who represented them in the collaborative process both cannot represent the parties in any subsequent related litigation and the clients need to be referred to new Lawyers.

Jointly retained neutral experts can be called in the process to reduce conflict and to prove additional support for settlement.

When is the Collaborative Process Suitable?

Not all matters are suited to the collaborative process.

In cases where there are psychological personality disorders or cases involving a history of domestic violence these would probably not be appropriate for the collaborative process.

Lawyers start off the process by assessing the client’s needs and aims and identifying the basis upon which the collaborative process can proceed.  The significant aspect is that the collaborative process excludes the threat of Court which can often impact on the effectiveness of negotiation and the parties’ attitude to settlement generally.  The need to achieve a “win in Court” is removed and the parties will proceed to try and reach an outcome which is the best in all the circumstances for the parties and their children.

Advantages

• The parties are present at all times during the negotiation and participate in their negotiations.  This close involvement results in a greater ownership of the outcome.
• More control of the process of settlement.
• Pre-approval of expenditure for all steps of the process so more control on costs.
• The contract entered into at the beginning of the collaborative process explains the process.
• Non-legal issues are irrelevant to the discussions.
• In parenting matters the parties can develop better communication skills in respect of issues that will be ongoing.
• Vulnerable clients cope better with negotiations then Court and the threat of going to Court.
• There is no clear winner and each party understands who is paying the costs.

Disadvantages

• Not suitable for clients with extreme personality disorders, mental health issues or addictive behaviour.
• No access to Court to enforce provision of documents.
• Having to change Lawyers if the collaborative process does not result in settlement.  Collaborative practitioners are unable to issue Section 60I Certificate in parenting matters allowing commencement of Parenting Application in the Court.
• The process is collaborative and there is no authority decision maker involved. 
• Lawyers need to change their rights based thinking. 
• Some people do not want to participate as the process is relatively new.

If you are in the process of working through contact issues for your child/ren or financial/property settlement matters and are of the view or unsure whether the collaborative process would suit your circumstances, please contact Richard Watson Senior Family Law Solicitor or Shereen Da Gloria his Personal Assistant to discuss your concerns and seek advice as to the best options available to you to reach an amicably negotiated cost effective resolution.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.