Simple Divorce Advice

By Bev Clark

Collaborative Divorce Lawyer, Bev Clark demystifies the collaborative process for those looking for a better divorce.

1. The lawyer screens the client and/or the matter for suitability for the process. Not every matter needs this much process and some matters would be better served by being referred to either direct negotiation between the parties or mediation. Some matters simply cannot be conducted in the collaborative way and may need to be referred to litigation.

2. Both parties need to be willing to use the collaborative process and to engage collaborative lawyers. Whilst many lawyers who are untrained in the collaborative process claim that they are “doing it anyway” the very nature of this process requires both lawyers to be trained and to have made the paradigm shift. Both lawyers involved in the matter need to be able to trust that they are both operating in the same way and can truly work as a team that will be devoted to finding an acceptable outcome for both parties rather than a lawyer acting as a gladiator for his or her own client and promoting only that parties interest. Relationships of trust between collaborative lawyers are enhanced and promoted outside of the collaborative negotiations by lawyers participating in a practice group which is a group of collaboratively trained lawyers and other associated professionals who meet on a regular basis in every collaborative community around the world. The purpose of the practice group is to build relationships of trust, to debrief, to conduct ongoing training and development and to generally promote collaboration within the wider community.

3. Collaborative lawyers jointly prepare for the first joint meeting and exchange information about the process, the client needs and they set the agenda for the first meeting.

4. Thereafter all substantive matters are discussed at joint meetings. The lawyers do not discuss substantive matters outside the joint meetings and any discussions they have outside the joint meetings are confined to matters relating to process and their clients needs in terms of being able to fully participate in the process. It is important to recognise that the lawyers do not write to each other on behalf of their clients and instead prefer that communication takes place in face to face meetings between all parties concerned. For the purposes of setting meetings and other procedural issues joint emails are often exchanged but these are group emails that go to the parties and both lawyers simultaneously. The collaborative lawyers can meet as required with their own clients to assist in coaching and preparation for meetings.

5. At the conclusion of each joint meeting the lawyers debrief with their own clients and then separately with each other.

Collaborative Road Map

The collaborative road map sets the steps that will be taken throughout the collaborative process. Those steps are as follows:

1. Set goals.
2. Identify interests.
3. Gather information.
4. Explore options.
5. Find solutions.
6. Reach agreement and record it as desired by the clients.

If Collaborative Fails

Any party is free at any stage to terminate the collaborative process and to seek alternative representation. If they do so they must give both lawyers and the other party an agreed period of notice before they are entitled to issue proceedings. The period of the notice varies but is usually approximately 30 days and is contained in the original participation agreement the parties signed at the commencement of their matter.

Either of the collaborative lawyers may withdraw from the process if they feel that their client is not behaving in the spirit of collaboration in which case they also must give notice to both parties and the other collaborative lawyer.

A collaborative lawyer cannot represent their client in Court if the collaboration fails.

If the collaboration fails the collaborative lawyers must assist the parties to transfer the matter to a litigation lawyer.

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  International Academy of Collaborative Practice www.collaborativepractice.com  Belperio Clark www.bc-lawyers.com.au  Adelaide Collaborative Practice Blog www.adelaidecollaborativepracticeblog.com

See original: How Does The Collaborative Process Work

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