Collaborative Law (or Collaborative Practice as it is sometimes known) is a relatively new and strange creature to Sydney Family Law. By way of background, Farrar Gesini Dunn were the first Family Law Firm to introduce Collaborative Law to Australia in or about 2006 and at that stage we only had offices in Canberra. We have been passionately working to bring more practitioners on board to work together to make this a viable alternative ever since.
What is fundamentally different about Collaborative Law from the traditional models of Family Law, is that it shifts the role of the lawyers from their role as the advocates of their clients, to the role of the advisor to their clients.
Further, in another paradigm shift for parties, Collaborative Law represents the move towards a needs and interest based discussion rather than an entitlements based negotiation.
Negotiation implies that two parties are opposed to one another and are fighting over what they deserve and are entitled to. Collaborative law is a model where parties work holistically as a team to problem solve a result that best suits all of the parties’ interests, needs and concerns.
That’s all great – but what does this look like in practice and how does it work?
Well, Collaborative Practice has no prescribed model and each collaboration looks slightly different. In NSW, a popular model is that based on that from Relationships Australia where two parties and their lawyers have a round table conference with a collaborative law coach who acts as a neutral facilitator for the meetings and acts as a guide to steer the collaboration process.
In some cases the role of the coach is extremely important. A coach will first meet with both parties to ensure that the process is suitable for both participants and will then work with each party in preparation for the first collaborative meeting.
In collaborative law, both parties meet with their lawyers and the coach for a series of meetings designed to work out the parties’ and the family’s interests, needs and concerns. Through these series of meetings, parties may seek advice from several professionals who will give that advice to the parties together to help them reach a joint decision.
One example is that of a Financial Neutral who is a person engaged to provide both parties with advice as to the financial consequences of their proposed settlement options – this is incredibly useful in shifting the focus from the immediate percentage division of assets to allowing the parties to look forward and to use financial modelling to see what their position will be as a result of separation.
Another great example is the use of Child Consultants who will meet with both parents individually and together, as well as with the children to report back on how the children are coping with separation and what arrangements are best suited for them. This will then guide the parties in making a child focused decision with respect of parenting arrangements.
Where Collaborative Law really shines, is due to the fact that both parties will sign participation agreements prior to engaging in the process of Collaborative Law which will preclude them from retaining their lawyers should the matter go to Court. This provides a powerful incentive for parties to resolve their dispute together rather than having to spend funds on retaining new lawyers and waiting up to 3 years on average for their matter to be resolved in the Family Courts.