Collaborative Practice in Family Breakdowns

2. History of Collaborative PracticeHistory of Collaborative Practice
Commenced in USA 25 years
ago
Stu Webb – veteran family lawyer,
weary of ‘wars of the Roses’

3. HistoryHistory
 Spread around the world
o USA, Canada, Britain, Italy, Australia…
 Initially just family law / family lawyers
 Later inclusion of other professionals
 Different models in different locations
 Models still evolving
 Typical model used in WA:
◦ 2 x lawyers, financial & counsellor/coach

4. Response to System InadequaciesResponse to System Inadequacies
General acceptance that current legal system is
problematic
◦ Long delays in Court
◦ High costs of litigation
◦ Uncertainty of outcomes
◦ Stress of adversarial model
◦ Damage to relationships that affect families, especially
children
◦ Family matters often better outside adversarial model

5. Preservation of RelationshipPreservation of Relationship
 Collaboration commenced in family law area
(only family law in WA)
 Equally useful in other situations where
relationships will continue
to be important in the future
 Eg: Estate disputes,
Partnership disputes,
Lessor/Lessee

6. What is Collaborative Practice?What is Collaborative Practice?
A non adversarial process
Focus on problem solving, interest based
negotiation
Process designed to preserve relationships
Dignified and civilised approach to resolving
issues that arise as a result of
the breakdown of a
relationship

7. Similar to Mediation?Similar to Mediation?
Both are forms of ADR
CP gives clients another option
CP looks similar to legally assisted mediation
– but it’s not!
◦ Involvement of coach/counsellor & financial
professional
◦ The Participation Agreement

8. Each party engages a trained Collaborative Practitioner
(lawyer)
Participation Agreement:
◦ Collaborative Practitioners are 100% committed to
settlement – Lawyers cannot go on to represent their CP
client in Court
Joint engagement of professionals
Features of Collaborative PracticeFeatures of Collaborative Practice

9. Gathering and sharing of information – full
disclosure
Parties take into account the goals and interests
of the other party, not just their own
Negotiations take place in joint meetings
◦ No traditional written legal correspondence
No unilateral action – all steps agreed by all
parties in advance
Professionals work together in a team, each
contributing their expertise
Features of Collaborative PracticeFeatures of Collaborative Practice

10. All issues important to the parties are dealt with –
not just those that a Court could consider
Creative options explored – not limited to what a
Court can order
Aim for a durable outcome
No party can take advantage of a mistake or
miscalculation of the other
Emotional environment is attended to
Legally - not a soft option
FeaturesFeatures of Collaborative Practiceof Collaborative Practice

11. Unmanaged Conflict
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Emotional Process of DivorceEmotional Process of Divorce

12. 12
Emotional Process of DivorceEmotional Process of Divorce
Neocortex BrainNeocortex Brain
AnalyticalAnalytical MindMind
Limbic BrainLimbic Brain
Emotional MindEmotional Mind
Reptilian BrainReptilian Brain
Instinctive MindInstinctive Mind

13.  Increased likelihood of preservation of relationships
(personal, business, family)
 Minimisation of hostility and conflict
 Greater safety for vulnerable parties
◦ Financial, legal, emotional
 Clients’ interests are forefront, even if non legal
 High success rate
 Usually faster and often cheaper resolution
Collaborative Practice: AdvantagesCollaborative Practice: Advantages

14. Maximum flexibility
Creative solutions
Discrete and private
Potential for improvement of communication,
negotiation and problem solving skills - may
minimise future conflict
Collaborative Practice: AdvantagesCollaborative Practice: Advantages

15. How Does it Work?How Does it Work?
 Initial contact by client/s
 Determine suitability of client/matter
 Assemble a team
 Prepare clients for joint meetings
 Agree on agenda and process for the first joint meeting
 Sign Participation Agreement
 All substantive matters discussed at joint meetings
 Professionals debrief with each other
 Non adversarial but still rigorous

16. The Collaborative TeamThe Collaborative Team
Professional backgrounds: Lawyers, accountants,
financial planners/advisors, child counsellors,
counsellors /psychologists, conflict coaches
All must be trained to participate in Collaborative
Process
Some teams may not involve financial professionals
or counsellors

17. The Collaborative LawyerThe Collaborative Lawyer
Advises and supports client – not client’s gladiator
Helps client clarify and communicate effectively about
goals, interests, hopes, worries, priorities and values
◦ Puts the law into perspective
Models and exemplifies collaborative
conflict resolution skills at meetings
Helps client find creative, comprehensive
and mutually acceptable solutions to problems
Prepares legal documents required (settlement deeds
etc)

18. Advantage of CP for LawyersAdvantage of CP for Lawyers
Offers a cost-effective option to suggest to clients
Better understanding of needs of both parties
No need to try to manage alone to resolve issues
Supported by complementary professionals
throughout process, eg to deal with emotional issues
of clients, complex financial circumstances
Far less stress

19. • May have a role in chairing meetings
• Provides individual support and assistance with managing
grief, anger, moving on to a new future
• Assesses emotional needs and issues of clients
• May facilitate team communication
• Develops strategies for managing emotions
• Focus on impact on children and other areas, depending
on expertise
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Counsellor or CoachCounsellor or Coach

20. Financial ProfessionalFinancial Professional
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• Gathers information
• Prepares asset register
• Educates one or both parties re finances
• Assists in creative financial option generation
• May highlight complex financial issues, eg overseas assets
• Assists with referrals to other financial experts, eg where
complex tax issues exist
• Reality tests financial options being
considered with clients: the voice
of objective expertise
• Future projections/budgets

21. 21
• Neutral source of general financial advice / info
• Financial decisions made with open eyes…
• Provides coaching to clients
• Provides cost efficiencies through specialisation
• Leverages existing knowledge and tools
• Technical support – income and capital gains tax, establishing
capital values, long term asset values, budgeting, structuring
• Painting the Picture – explanatory illustrations,
modelling tools, resource libraries
• Network of related professionals to call
upon
Financial ProfessionalFinancial Professional

22. Advantages of Team ApproachAdvantages of Team Approach
• Recognition that separation is a traumatic event that is
bigger than a legal issue
• Recognition that parties benefit from the assistance of a
range of professionals during breakups
• No one professional can best address all concerns
• The professionals work together rather than working
against each other

23. The Team Approach for ClientsThe Team Approach for Clients
 ‘One stop’ shop, although the expertise of other
specialists can be utilised
 Cheaper to have the appropriate professionals dealing
with their area of expertise
 Feel fully supported in process
 Communication and emotions are heard and
acknowledged
 New skills learned
 Often a more efficient use of lawyer’s time if they are
assisted by the team
 Neutral professionals provide a useful perspective – may
be heard more easily

24. Thank you!Thank you!
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