Collaborative Practice
Collaborative Practice is a dispute resolution process wherein the parties and their lawyers commit to avoiding Court. Litigation is financially good for lawyers but financially and otherwise damaging for families. That is why we recommend Collaborative Practice as the most appropriate dispute resolution process.
In Collaborative Practice, both parties with their lawyers negotiate their dispute. If a decision cannot be reached, both parties’ lawyers are disqualified from acting. This ensures that both lawyers acting in a Collaborative matter are 100% committed to negotiating a settlement.
Collaborative Practice was specifically developed to resolve disputes and preserve relationships. This becomes necessary when dealing with family breakdowns involving children, and both parties need to continue a civil relationship in the future in spite of a separation.
In a Collaborative case, the parties:
- Are each represented by lawyers trained in Collaborative Practice
- Agree to exchange information in an open and cooperative manner
- Negotiate in joint meetings in which both the parties and lawyers participate
- Engage experts jointly if experts are needed – experts may include psychologists, accountants or another professional
- Promise to take a reasoned stand on every issue and to negotiate in good faith
- Don’t take unilateral action, i.e. involving one side or party only
- Don’t exchange provocative correspondence
- Work hard to make sure that they maintain a relationship that is workable for the future.
The History of Collaborative Practice
Collaborative Practice was started by a divorce lawyer, Stu Webb, in Minnesota in the mid 1980s. Stu had become a war-weary family law litigator. He felt that there had to be a better way for people to deal with these very important issues in their lives instead of going to court, so he spoke to a few of his colleagues and a judge and they started to work out a process.
The Collaborative process is voluntary and confidential. All of the parties enter into it committed to engage in principled negotiation with a view to settling the dispute without going to Court. The lawyers’ role is that of legal adviser and of ally to their clients. They will facilitate and guide the negotiations while the clients themselves conduct the negotiations.
A Participation Agreement which sets out the rules governing the process and the obligations of the parties is signed by the clients, the lawyers and any experts.
The International Academy of Collaborative Professionals (IACP) is an international interdisciplinary organisation promoting Collaborative Practice around the world. There is a wealth of information available on that site for those interested.
Collaborative Process
- Collaborative lawyers contract with the clients that if they are not able to resolve the dispute through negotiation, then they must disqualify themselves. This is one of the central principles of Collaborative Practice.
- Similar rules affect the experts who are also part of the settlement team. Neither the lawyers nor the experts can be called to give evidence in Court of what transpired during the Collaborative process.
- The clients and lawyers are focused on settling the dispute and are therefore willing and committed to entering into good faith negotiations. In fact, if the lawyers become aware that any party or professional is not being frank and honest, is withholding information, or has some other agenda, then the lawyers are required to terminate the process and cannot act further for the parties.
Our Values at Belperio Connell
- Cost Effective Expert Advice
- We Care About You
- Dedicated & Approachable
- Resolution Focused
Will Collaboration Work for You?
Collaborative Practice is likely to be a workable option if:
- You want to maintain the tone of respect, even when in disagreements
- You want to prioritise the needs of any children involved
- The needs of all parties require equal consideration, and you will listen objectively
- You believe that working creatively and cooperatively solves issues
- It is important to reach beyond today’s issues and conflict (regardless of any anger, frustration or pain you may be experiencing) to plan for the future
- You can behave ethically towards all parties. You choose to maintain control of the dispute resolution process with the other party(s), and not relegate it to the Courts.
Advantages of Collaborative Practice
- All involved are committed to not exacerbating the conflict
- Professionals involved have undertaken the necessary training to help clients identify interests and manage the dispute by way of interest-based negotiations
- Increased likelihood of preservation of relationships (familial, personal, business, etc)
- Minimisation of hostility and conflict
- Clients retain control over the dispute resolution process and eventual outcomes – the parties are the decision makers not the judge
- Maximum flexibility to explore creative solutions to fit the individual circumstances
- Maximises privacy
- Potential for cost savings
- Potential for improvement of clients communication, negotiation and problem solving skills which may assist to avoid or minimise future conflict
- Puts children’s needs first
- Concentrates on maintaining an amicable relationship between disputing parties
- Provides a fast and fair outcome for both parties
- A team of professionals including counsellors help you deal with the emotional aspect of your dispute as well as the legal and financial issues
- Avoids the emotional and financial stress associated with a traditional adversarial process and drawn-out legal processes
- By keeping your dispute out of court, your privacy, dignity and reputation are protected.
Core Elements
- An agreement to negotiate a mutually acceptable settlement without going to Court to resolve disputes
- Honest and good faith communication and exchange of information
- A goal of creating shared solutions that take into account the interests of all parties
- Withdrawal of all professionals (including lawyers) if any party chooses to go to Court
- A written commitment by way of binding agreement between the parties and their lawyers to the above before engaging in the process
Collaboration vs Litigation
Collaboration and litigation are two very different approaches to resolving disputes. Collaboration involves the parties working together to find a mutually acceptable solution with the help of lawyers, financial experts, and other specialists. This approach prioritizes communication, transparency, and a focus on shared interests to find a solution that works for everyone. On the other hand, litigation involves taking the dispute to court, where a judge or jury makes a decision based on the facts presented. This approach can be adversarial and time-consuming, often resulting in winners and losers rather than a shared solution.
While litigation may be necessary in some cases, collaboration offers a more efficient, cost-effective, and often less stressful way of resolving disputes. It allows the parties to have more control over the outcome and can help to preserve relationships, which can be crucial in family law or business disputes where ongoing relationships may be necessary.
Collaborative practice is a dispute resolution process that involves clients, lawyers, and other professionals working together in a non-adversarial way to reach a mutually beneficial agreement. This approach prioritizes open communication, respect, and problem-solving, allowing clients to retain control over the outcome of their dispute.
At Belperio Connell, our collaborative practice approach involves a team of legal professionals working with clients to find creative solutions to disputes, avoiding court proceedings wherever possible. We start by conducting an initial consultation to assess the feasibility of collaborative practice for a client’s specific situation. If it is appropriate, we will work collaboratively with the other party and their legal representative to reach are solution that meets our client’s unique needs and interests.
Collaborative practice can often be more cost-effective than traditional litigation, as it involves less time in court and lower legal fees. Additionally, by working collaboratively to reach an agreement, clients can avoid costly and time-consuming battles over issues that may not be important to them. At Belperio Connell, we work with clients to develop a realistic budget and strategy for their collaborative practice case.
Collaborative practice requires all parties to be committed to the process and to work together in good faith. If one party is unwilling to engage collaboratively or is not fully committed to reaching a mutually beneficial agreement, the process may breakdown. However, our experienced legal professionals at Belperio Connell are skilled at managing challenges and ensuring that collaborative practice is successful in arriving at a satisfactory outcome for our clients.
News & Insights
Stay informed and up-to-date with the latest legal news and insights. Our team of legal experts provides valuable information on new laws, regulations, and industry trends to help you make better decisions.
Many articles talk of the complex nature of relationships that lead to blended families. Studies suggests that 60 percent of marriages involving children from a previous marriage end in separation or divorce.
The Parliamentary Joint Committee’s Fairness in Franchising report revealed a range of problems in the franchising sector. Franchising regulation needs reform to restore confidence in the sector.
The ACCC has instituted proceedings against Fuji alleging that nine types of Fuji’s standard form small business contracts contain numerous unfair contract terms, including automatic renewal terms, excessive exit fees and unilateral price increases.
It is quite common for issues to arise from the purchase of a Used Car. The Australian Financial Security Authority (AFSA) has recently expressed concerns with such sales.
