Simple Divorce Advice

By Bev Clark

The hallmarks of collaborative practice are:

1. A shared commitment to proceed honestly, respectfully and in good faith.
2. An agreement not to take the matter to Court and not to threaten Court action.
3. A withdrawal of all professionals (including lawyers) if any party chooses to go to Court.
4. Active participation by the client in the process including gathering and openly sharing information.
5. The joint engagement of any experts that are needed in the process with the experts frequently being invited to attend meetings to present their findings rather than produce reports. This enables the parties to communicate directly with the expert and have any questions they need answered as well as a cost saving for the parties if the expert’s views do not need to be recorded in a report.
6. A commitment to voluntary disclosure of all facts and information material to the resolution of issues.
7. An agreement that neither party will take unilateral action and that any steps that are taken by any of the parties are agreed by them in advance.
8. The parties participate in the process using interest based negotiation, in which they take into account the goals, interests and concerns of all the parties not just their own.
9. Creative options are explored and the parties are therefore free to look at possible solutions that would fall outside the available solutions that a Court could offer.
10. An aim to reach agreement that all parties can live with. The parties are working toward what Collaborative lawyers refer to as a “durable” outcome. In other words they are looking to find a solution that will withstand the passage of time and that neither party is likely to reflect upon negatively in the future.
11. No party may take advantage of any mistake or miscalculation of the other party. This includes the lawyers. The lawyers truly must work as a team to reach an acceptable solution for both parties. It is recognised that in a traditional negotiation if one lawyer makes a mistake which will disadvantage his or her own client there is no obligation on the other lawyer to point that out. In the collaborative model there is an expectation that it will be pointed out as it is recognised that one of the priorities for the parties is to maintain a respectful and appropriate relationship into the future and that if an error is not recognised until after the deal has been done, this may well work against the parties maintaining a reasonable relationship.
12. Cooperative and collegiate approach amongst the lawyers and other professionals involved the process.
13. The above approach reflects a fundamental shift in the attitude by lawyers and is known within the collaborative community as the “paradigm shift”. Many lawyers trained in the collaborative process must unlearn some of the adversarial habits and approaches that they may have developed over a long career.

Advantages Of Collaborative Practice

1. Increased likelihood of preservation of relationship, both personal, business and family.
2. Minimisation of hostility and conflict.
3. Clients control the dispute resolution process and the eventual outcomes.
4. They are not relying on a Judge to impose a solution.
5. Maximum flexibility to explore creative solutions to fit their individual circumstances.
6. Maximises privacy.
7.  Cost savings.
8.  Potential for improvement of client’s communication, negotiation and problem solving skills which may assist or minimise future conflict. This is an important aspect and many clients report that at the end of their process they enjoy a better communication, with each other than they did during their relationship and prior to dispute. The lawyers are instrumental in modelling respectful communication throughout the process as well as coaching the clients.
9. Reduction of stress, distraction and loss of opportunity costs.

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

Excerpt from: What Is Collaborative Practice?

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