Collaborative Practice - Why Alternate Dispute Resolution?

Collaborative Practice - Why Alternate Dispute Resolution? By Bev Clark

Modern consumers of legal services are far more discerning now than in past generations.

It is fair to say that in years gone by lawyers “owned” the law in that it was contained in law books housed in law libraries to which the public did not have access. The general public were somewhat in awe of professionals generally including the legal profession and were less likely to question the advice they were given.

The modern consumer is often well informed prior to visiting their lawyer. They have access to an enormous amount of material on the internet and frequently will come to their appointments armed with information. They are more likely to question the advice they are given or to seek second opinions.

The general public is also bombarded with imagery in the popular media from which they form views about lawyers which are not always complimentary. Lawyer jokes suggest that lawyers are greedy, self-serving, dishonest and tricky.

Popular television shows depict or create an expectation of prompt and obvious justice. In the space of a one hour program a matter is investigated, litigated and judgment is pronounced.

Articles have appeared in the press highlighting the high costs of litigation and the slow progress of matters through the Court system and the uncertainty of the outcomes that a Court can produce.

Former President of the Law Society of South Australia John Goldberg was quoted in The Advertiser as saying “clearly Judges are not endowed with super human powers and there is no fool proof test available to determine whether someone is telling the truth or is lying … Courts do not pretend that they are capable arriving at the ultimate truth”. In a further article he said “Compromise is almost always sensible because legal disputes are usually costly and a fight to the bitter end can often eat up the amount in dispute”.

Client Options For Dispute Resolution

Many lawyers are not trained in ADR and find it difficult to fully inform clients in relation to the full range of sensible options to resolve a dispute. One size should not fit all and every client and every matter should be dealt with on its merits. Clients should be fully informed about process options which include:

Write It Off As A Bad Experience

Some disputes simply do not warrant the cost of litigation or indeed the cost of lawyer involvement or the stress or distraction for the client. Sometimes the best advice that can be given to a client is to accept what has occurred and walk away.

Direct Negotiation Between The Parties To The Dispute

High functioning clients with reasonable parties on the other side may benefit from taking legal advice but then being encouraged to negotiate directly with the other party without using lawyers. The power of apology can sometimes go a long way to resolve a dispute and face to face communication between the parties, where that is possible, can be a powerful approach. Sadly, not everyone can affect a resolution in this way.

Lawyer Negotiation

Whilst this can be productive it often comes with its own disadvantages. Some clients are fairly brave hiding behind their lawyer in their lawyer’s office and sometimes the nature of the communication forwarded on the client’s behalf by the lawyer can be provocative and unhelpful in resolving a dispute.

Lawyers conducting negotiations on behalf of their client are invariably promoting only their client’s best interests and putting their client’s position at its highest. Invariably the response from the lawyer acting for the other party will be similarly positional and although sometimes matters will resolve in this way, that is not always the case. There is also frequent delay in this approach particularly if one of the parties has engaged a lawyer who is either not efficient, too busy or who has a client who is slow to provide instructions.

Mediation

Mediation is a process whereby both parties engage one mediator to assist them to facilitate conversations with a view to resolving their issues. The mediator needs to be balanced and unbiased in their approach and whilst this is an excellent process for those clients who can participate in mediation, it is not for everyone.

Arbitration

This often resembles litigation.

Litigation

Litigation should always be the last resort. Litigation is invariably expensive and at the beginning of a matter it is impossible for any lawyer to accurately predict just how expensive the process will be for the party. The litigation process is lengthy with many of the Courts having long delays between the issuing of proceedings and the matter reaching a trial. The process is stressful for all involved and that stress is frequently heightened by the high degree of uncertainty in terms of an outcome. The damage to relationships that occurs in a litigation process is frequently irreparable. Even parties who perceive themselves to be the winner in a litigated outcome frequently express dissatisfaction with the outcome as this has often come at a high price both personally, financially and at the expense of a relationship in addition to the distraction and potential loss of other opportunities whilst the litigation process was being pursued.

Collaborative Practice

Collaborative practice is a deeper form of dispute resolution specifically designed to promote respectful good faith negotiation in face to face meetings where both parties are represented and supported throughout the process by their Collaborative lawyers and in a team model, by other fully trained Collaborative professionals.

The History Of Collaborative Practice

Collaborative practice commenced in 1990 after its originator Stu Webb decided that after 20 years of practicing family law he could no long represent clients in an adversarial family law system which exacerbated problems of families going through separation.

Stu realised that for Collaborative Practice to succeed it needed to occur outside of the shadow of the Court and he insisted that the parties to the process sign a Participation Agreement that required the lawyers to withdraw from the matter if the Collaborative process failed and the clients decided to litigate. In other words he was insistent that the lawyers devote 100% of their effort to the resolution of the dispute. He recognised that taking the threat of Court off the table changed the dynamic of the negotiation and prevented the lawyers from strategising and tactically manoeuvring and therefore created a more stable foundation for the negotiations to proceed.

Whilst collaborative practice commenced in the United States and has spread exponentially throughout the United States it is now also widespread throughout Canada, Britain, Europe and more recently Australia and New Zealand.

Collaborative practice originated in the context of family law cases however it has now expanded to be used in other civil areas and is suitable for any area of law where it is important for the parties to preserve a relationship. Good examples are family law matters where there are children involved in the family or family law matters where extended relationships are important to the parties such as the relationships they have with their friends and each other’s family. Estate matters where siblings or relatives are arguing about a relative’s estate lend themselves beautifully to the application of collaborative practice as do business partnership disputes, employee and employer disputes, neighbour disputes and the like.

For some parties even if relationships are not important, the guarantee of privacy in the resolution of their dispute is attractive and they choose collaborative practice for that reason.

Collaborative practice commenced in South Australia in early 2008 with the first cases being conducted in November 2008.

Resources

Information can be obtained by the public and the profession on the website of the Law Society of South Australia www.lawsocietysa.asn.au

The Law Society of South Australia has established a collaborative law committee.

There is one practice group in Adelaide known as the Adelaide Collaborative Practice Group which meets on a monthly basis. Information about that group can be obtained from Bev Clark bc@bc-lawyers.com.au