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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
The joy of separation!
Divorce-
“From the Latin
word meaning to
rip out a man’s
genitals through
his wallet”.
(Robin Williams)
The joy of separation!
Divorce-
"I think a lot of
times divorce can
be like
circumcision with
a weed whacker."
(Robin Williams)
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."
And more joy!
• It is rumored
that Madonna
and Guy Ritchie
may have also
used
Collaborative
Law during
their separation
Collaborative Law hits pop culture
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’.
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.
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
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.
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
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....
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!
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
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
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
What is important to our clients?
https://www.youtube.com/watch?v=IGQmdoK
_ZfY
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!
The Collaborative Process
What does it look like?
There are 7 steps!
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
A case study
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
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.
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
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
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
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.
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.
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.
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
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
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
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
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
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
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.”
The Cost
• Overall cost to both parties $25,000
• Time Frame- approximately 8 weeks to
agreement
How to be a Collaborative Practitioner
Undertake training course
Find like minded professionals to work with
Get collaborating- you never know what
might happen.....
Collaborative Practice a Client experience
http://www.youtube.com/watch?v
=Cb2NcCNDJvg

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The Collaborative Law Process - A Case Study

  • 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. The joy of separation! Divorce- “From the Latin word meaning to rip out a man’s genitals through his wallet”. (Robin Williams)
  • 3. The joy of separation! Divorce- "I think a lot of times divorce can be like circumcision with a weed whacker." (Robin Williams)
  • 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. And more joy! • It is rumored that Madonna and Guy Ritchie may have also used Collaborative Law during their separation
  • 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. What is important to our clients? https://www.youtube.com/watch?v=IGQmdoK _ZfY
  • 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. The Collaborative Process What does it look like? There are 7 steps!
  • 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
  • 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. The Cost • Overall cost to both parties $25,000 • Time Frame- approximately 8 weeks to agreement
  • 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. Collaborative Practice a Client experience http://www.youtube.com/watch?v =Cb2NcCNDJvg