The Collaborative Law Process - A Case Study

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This presentation was made by Director of Brisbane Family Law Centre, Clarissa Rayward in September 2012.

Clarissa made the presentation on behalf of the Family Law Practitioners Association of Qld.

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The Collaborative Law Process - A Case Study

  1. 1. Presented by Clarissa Rayward Accredited Family Law Specialist Mediator and Collaborative Practitioner Director, Brisbane Family Law Centre www.thehappyfamilylawyer.com The Collaborative Law Process A case study
  2. 2. The joy of separation! Divorce- “From the Latin word meaning to rip out a man’s genitals through his wallet”. (Robin Williams)
  3. 3. The joy of separation! Divorce- "I think a lot of times divorce can be like circumcision with a weed whacker." (Robin Williams)
  4. 4. The joy of separation! "We will strive to be honest, cooperative and respectful as we work in this process to achieve the future well being of our families. We commit ourselves to the collaborative law process and agree to seek a positive way to resolve our differences justly and equitably."
  5. 5. And more joy! • It is rumored that Madonna and Guy Ritchie may have also used Collaborative Law during their separation
  6. 6. Collaborative Law hits pop culture
  7. 7. The Development of Collaborative Practice •Started in Minnesota USA in 1990 when Lawyer Stu Webb and fellow divorce lawyers and mediators formed the Collaborative Law Institute. •Came about after Stu began to lose faith in the traditional role of a lawyer in family breakdown and was searching for an alternative. •On the 14th of February 1990 Stu Webb wrote to Justice Keith about his ‘New Idea’.
  8. 8. The Development of Collaborative Practice “But you and I have both experienced, I’m sure, those occasional times, occurring usually by accident, when in the course of attempting to negotiate a family law settlement, we find ourselves in a conference with the opposing counsel, and perhaps the respective clients, where the dynamics were such that in a climate of positive energy, creative alternatives were presented. In that context, everyone contributed to a final settlement that satisfied all concerned – and everyone left the conference feeling high energy, good feelings, and satisfaction. More than likely, the possibility for a change in the way the parties related to each other in the future may have greatly increased. As a result, the lawyers may also develop a degree of trust between them that might make future dealings more productive.
  9. 9. The Development of Collaborative Practice So my premise has been: why not create this settlement climate deliberately? I propose doing this by creating a context for settling family law matters by, where possible, removing the trial aspects from consideration initially. I would do this by creating a coterie of lawyers who would agree to take cases, on a case-by-case basis, for settlement only. The understanding would be that if it were determined at any time that the parties could not agree and settlement didn’t appear possible, or if for other reasons adversarial court proceedings were likely to be required, the attorneys for both sides would withdraw from the case and the parties would retain new attorneys from there on out to final resolution. I call the attorney in this settlement model a collaborative attorney, practicing in that case collaborative law.” Excerpt from letter Stu Webb to Justice Keith 14/2/1990
  10. 10. What is Collaborative Practice? Form of dispute resolution where generally 2 clients and 2 lawyers & other prefessionals, as needed, work together as a team through a series of face to face meetings until agreement is reached. It is the concept of a ‘team’ and the face to face process that is essential for successful collaborative practice.
  11. 11. The Collaborative Agreement •Essential to the Process is the Team’s acceptance and adherence to the Participation Agreement •Precludes Lawyers & Experts from participating in Litigation between parties •Early, full disclosure •Commitment to good faith negotiation and respectful demeanour •Agreement not to litigate or threaten litigation “It Liberates the creative problem-solver within” Pauline Tessler The Agreement creates a ‘safe container’ for your negotiations
  12. 12. 2 Myths about collaborative law I often hear: I don't need to study to call myself a ‘collaborative lawyer’. I am every day that is just how I work....
  13. 13. 2 Myths about collaborative law Or my other favourite: Why would I sign a contract that means I ‘give a client away’? The client won’t hire me in the first place when I tell them that!
  14. 14. What is different about this process? Almost no letters! (yippee) You will have to talk to people (lots) You will have to talk to people about what matters to them and not what matters to us/ the law You will need to trust your colleagues Your client will drive the process- not you
  15. 15. What is ‘the same’ about this process? You will still give all the legal advice you normally would You will still draft usual settlement documents
  16. 16. What is it that sets this aside from other processes For me- The team The Agreement The use of parties ‘Interests’ to guide an outcome as opposed to their legal rights and entitlements
  17. 17. What is important to our clients? https://www.youtube.com/watch?v=IGQmdoK _ZfY
  18. 18. Collaborative Practice For me it has changed the type of lawyer I am, pervades all of my practice and I think makes me a better lawyer for it!
  19. 19. The Collaborative Process What does it look like? There are 7 steps!
  20. 20. The 7 step Collaborative Process 1. Each client meets with his / her collaborative lawyer 2. Lawyers meet and confer to prepare for first fourway meeting 3. Clients meet with respective lawyers to prepare for first fourway meeting 4. First fourway meeting 5. Clients debrief with respective lawyers 6. Lawyers debrief with one another and plan for effective subsequent meeting(s) 7. Process of preparatory meetings and debriefings after each fourway meeting continues until resolution is achieved
  21. 21. A case study
  22. 22. Case 1- Facts • Husband & Wife were born in the mid 1960’s, commenced cohabitation in 1986 and were married in 1988. • They separated in mid-2009 and were divorced in early 2013 . (23 year relationship) • Husband is a professional and earns $148,000 per annum • Wife is a professional and earns $82,000 per annum • There are three children then aged 20, 17, 13 • The middle child lived full time with Husband and had a strained relationship with Wife- was an elite athlete • The eldest child lives with the Wife • The youngest child lives between both parents under an informal equal time arrangement
  23. 23. Facts Continued • After separation the parties remained living in the matrimonial home for a short period, after which Wife continued to live in the matrimonial home and Husband rented a property elsewhere. • The parties had been separated for almost 3 years before they consulted solicitors to finalise their property division • Both parties attended a free information session run by Brisbane Family Law Centre. Hayley had been in attendance at the session also. The Wife, at a later date, approached Hayley to be her Collaborative Practitioner. The husband engaged Clarissa.
  24. 24. Summary of Meetings • This matter was resolved in three collaborative meetings between August and October 2012 • Each meeting took approximately 2 ½ hours • Each meeting dealt with different issues • Each of the lawyers had met with their client prior to the first meeting
  25. 25. Meeting One • The key points of meeting one were as follows: – Overview of the Collaborative Law Process – Clients to describe their Goals and Interests in the process – Identification of Issues – Homework
  26. 26. Goals and Interests of the Clients • Wife and Husband had fairly similar interests regarding the children. Both parents wanted to continue to be able to communicate with each other in relation to the children • Wife and Husband wanted the children to be happy, provided for and able to chase their dreams • Both parties wanted financial finality • They also wanted to set ground rules as to how they would negotiate and make decisions about the children in the future • Wife expressed desire to retain the family home, if financially possible, however wanted to have a secure home for her and the children • Husband wanted to be able to re-enter the property market, ideally within the next 12 months
  27. 27. Identification of Issues • The lawyers then advised their clients as to the relevant issues relating to property and children. Property – Identification of the Property Pool – Range of values for each item – Full Disclosure – Identification of Needs Children – Current Arrangements – Identification of Needs • The parties were happy with the current arrangements relating to children, so no further discussion was entered into.
  28. 28. Homework Husband • Husband was required to do the following: – Attempt to draft the divorce application – Make enquiries as to the current valuation of investment property – Ascertain how many shares were held by the parties Wife • Wife was required to do the following: – Check the divorce application as drafted by Husband – Check with the real estate valuer if an updated valuation would be required for the Matrimonial Home and if so how much would said valuation cost – Ascertain surrender values and beneficiaries for life insurance policies Both • Both parties were required to provide to the other party their bank and credit card statements and superannuation values.
  29. 29. Meeting Two • The key points of meeting two were as follows: – Review of Homework – Identify the Property Pool • (including the somewhat awkward disclosure of the Wife’s credit card debt) – Discuss the “4 Step” Process – Discussion of Child Support • The second meeting was essentially devoted to giving the parties legal advice.
  30. 30. Homework • Husband was to provide statements for Investment property • Husband to get payslip for end of financial year • Wife to find out what her actual borrowing capacity is and the conditions that would be attached to said borrowing • Wife and Husband were to make enquiries with the Child Support Agency regarding the change in assessment that would occur when middle child turned 18
  31. 31. Meeting Three • Wife and Husband attended meeting three intending to achieve a final settlement of their property interests • It was decided that they would spend some time in separate rooms during these discussions • The property pool was not agreed at the commencement of negotiations
  32. 32. Perfect Pool- Wife Item Value Matrimonial Home $800,000 Mortgage over Matrimonial Home ($100,000) Investment Property $300,000 Mortgage over Investment Property ($100,000) Superannuation – Wife $250,000 Superannuation – Husband $250,000 Shares $25,000 Credit Card Debt ($80,000) TOTAL POOL $1,345,000
  33. 33. Perfect Pool- Husband Item Value Matrimonial Home $800,000 Mortgage over Matrimonial Home ($100,000) Investment Property $300,000 Mortgage over Investment Property ($100,000) Superannuation – Wife $250,000 Superannuation – Husband $250,000 Shares $25,000 Investment Property Sale Costs ($10,000) Investment Property Capital Gains Tax ($35,000) TOTAL POOL 1,380,000
  34. 34. Formalising the Outcome • The outcome reached in negotiation was given effect by: – Application for Consent Orders – Consent Orders relating to Property – A Binding Child Support Agreement
  35. 35. The Outcome • The legal outcome was- • Wife retained House and Mortgage, Credit Cards and her super (save for split) • Husband retained investment property, his super and shares and received a cash payment of $110,000 and a super split of $40,000 and was credited with $24,000 in lump sum child support • % outcome (when drafted for Consent orders) was 48% to husband 52% to wife
  36. 36. The Feedback • The Husband- “Hi Clarissa. Thank you for helping me through my recent financial settlement. I feel we reached a fair and equitable solution. My ex-wife and I can now get on with our separate lives whilst still cooperating when it comes to our kids. I doubt this would have occurred had we gone to court. The non-confrontational nature of the collaborative approach worked for me. Thanks again.” • The Wife- “My family break up has been a draining, emotional time so the last thing I wanted to experience was more heartache and turmoil by going through a lengthy and difficult property settlement. So my ex and I decided to try a collaborative process in the hope that it would be gentler, not only on us, but our whole family. Most of the settlement negotiations were done with face-to-face meetings so we could both ask questions, receive honest answers and discuss options which meant the final decisions were made faster. Throughout the whole process, my lawyer provided me with legal advice and support. The collaborative process was a better one for me, and now I can move forward with my life.”
  37. 37. The Cost • Overall cost to both parties $25,000 • Time Frame- approximately 8 weeks to agreement
  38. 38. How to be a Collaborative Practitioner Undertake training course Find like minded professionals to work with Get collaborating- you never know what might happen.....
  39. 39. Collaborative Practice a Client experience http://www.youtube.com/watch?v =Cb2NcCNDJvg

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