What is this thing called Collaborative Practice?

Every 30 minutes an Australian child experiences the divorce or separation of their parents. Research consistently shows us that these children are at significant risk of harm. It is not divorce or separation itself that harms children, but it is the conflict that can flow on for years and years after that ensures that those children will never reach their full potential in life.

The traditional legal process, particularly the adversarial process, plays a significant role in creating and reinforcing ongoing conflict. Whilst we are blessed in this country with a system that is based on well thought out principles, exercised by skilled and talented judges, there are still many flaws in our system when it comes to families.

Some might say that the issues that arise for families upon relationship breakdown are not legal issues and should not therefore be dealt with by Courts. This may well be the case, but we have the system we have and at this time, arrangements for children after separation are largely dealt with by our Family Courts.

Over the past 10 years I have had the privilege of being introduced to a legal process called collaborative practice. You may have heard about this process and, if you’re a lawyer, you may have some questions or doubts about how it can work for your clients.

I can speak from my own experience and say that after adopting the principles and skills of the collaborative process and applying it to every avenue of my practice, I consider myself to be a far more well-rounded and talented family lawyer than I was previously.

Collaborative Practice- some sort of Voodoo?

I encourage you to think of collaborative practice as a ‘fancy phrase’ for what is ultimately a structure for negotiation. What collaborative practice does is give a coherent structure to the legal process or path that a family will need to travel upon separation or divorce. It works for both parenting and financial matters.

In the most simplistic sense, collaborative practice enables lawyers to focus on the skills at which we are best, whilst placing our clients in an environment in which they have the best chance of being comfortable to become problem-solvers, taking ownership of their own family issues and creating solutions for their families that suit them. To do this, they take into account their legal entitlements and obligations, but more importantly their personal goals and values in life. It is perhaps this combination of focussing on a family’s goals and values, along with their legal entitlements, and placing an almost equal weight on both that sets collaborative practice aside from most other legal processes, including even mediation.

When negotiating using Collaborative Practice a series of meetings are held between a client, their spouse and their respective lawyers and other professionals, to discuss the issues between them as a result of their relationship breakdown and to enable them to reach agreement. Essential to the collaborative process is the commitment by those involved, both clients, lawyers and other professionals, to focus on settlement outcomes and to not threaten Court proceedings. This commitment to settlement is what separates the collaborative process from mediation or a round table conference conducted as a part of solicitor based negotiations.

This commitment is documented in the form of a binding contract- the participation agreement. This means that all of the participants in your collaborative process are agreeing from the outset to focus purely on settlement options and through the contract, agree not to go to Court or even threaten Court proceedings. In the event that the settlement process breaks down and the collaborative team disbands, the clients have the opportunity to engage new legal advisers to enter the Court process.

The collaborative process allows for significant flexibility and can offer parties the benefit of advice from professionals such as financial planners and accountants, as well as counsellors and child experts, to ensure that their legal matters are settled in the most beneficial way for the whole family. Generally, in collaborative practice, all negotiations will occur by way of a series of 2 hour meetings. In my experience, it takes between 3 to 5 meetings for a couple to reach agreement on a final basis in relation to financial and parenting issues.

As I mentioned above, perhaps the most significant difference between collaborative practice and the other pathways available for separating families, is that the focus is on the goals and interests of the couple. By focussing on goals and interests, a couple are encouraged to find agreements that not only meet their legal rights and entitlements, but perhaps more importantly meet their goals and interests for the future. As a result of this, the agreements reached in a collaborative process are often more holistic and long lasting as they are personalised to the couple and their family.

The two most common concerns about Collaborative Practice

I’ve had the opportunity to teach over 170 family lawyers, financial planners, social workers and psychologists in collaborative practice over the last two years. I’m almost always asked the same two questions or receive the same two comments from those who are unsure about the process. Firstly, I often hear “I don’t need to do any training. I’m already a collaborative lawyer, that’s just how I work” and secondly, “My clients won’t want to sign a contract that means that I may not be able to assist them in the future”.

To the first comment, I say as follows- chances are at some stage in your career you’ve worked against a colleague who you would consider a friend, where you can pick up the phone, have a chat, find solutions and the whole legal process is easy. No doubt you are using skills that a collaborative professional would use when you operate in this way, but you are not using a collaborative process. Essential to a formal collaborative process is the participation agreement. It acts as a “safe container” as described by Pauline Tessler, a creator of collaborative practice. It is in the 'safe container' that we are free to use our skills as collaborative professionals to act openly, to not be afraid that information that we are providing will subsequently be used against us or our clients and to be confident that if errors are made they will be corrected, because the contract sets out the terms upon which we are negotiating.

I’ve also seen and heard many lawyers tell me that they are ‘naturally collaborative’ when they act in ways that are anything but that. They can often be nice and charming and seem to help you solve the problem, but in fact they’re just sitting back and waiting for an opportunity to take advantage of the situation.

To the second comment, I would say the following- It is your client’s choice to participate in the collaborative process and your choice as a lawyer to operate as a collaborative lawyer. In my personal experience, once a client chooses to engage in a collaborative process, there is a very small chance that that process will not reach a resolution.

Key to this is spending the time that is needed with your client in the first place to understand what it is that they’re hoping to achieve in any legal process, the type of person they are, the type of person their former partner is and what type of dynamic exists between them. If you don’t have the thorough understanding of the relationship that you are working with, it will be difficult for you to know whether a collaborative process is the best process for either party. Again, this is perhaps a significant difference between collaborative practice and other legal processes. It is not really necessary to give any depth of thought to the attitudes and personality of the opposing client if you are commencing Court proceedings. Similarly, you may give it some thought in a mediation process, but it’s unlikely that it would prevent you from proposing mediation and it’s certainly not a reason to avoid family dispute resolution under the Act.

The Collaborative Client and the Bigger Picture

For collaborative practice to be successful for a family, both clients need to be committed to something bigger than a legal outcome. In my experience, these clients are committed to maintaining a relationship, often as parents into the future. If they are not parents, I find that clients that are still interested in the collaborative process have generally a personal value in life that means that they do not wish their former partner any ill will. They wish to leave their relationship with respect and dignity and are looking for a process that will enable them to do just that.

The Collaborative Professional

When I embark upon a new training program with new collaborative professionals, I ask them to keep a few things in the forefront of their minds. I suggest they try not to think of collaborative practice as an alien process that is so different from anything else that they do. It will, in fact, be so similar to many things that you already do. It really is simply a phrase for a structure that is applied to a standard legal process. Rather than solely focussing on your client’s legal rights and entitlements, you will however be required to consider both your client’s and their former partner’s goals and values in life. Whether as a lawyer in the process, a financial neutral, a communications professional or a family therapist, you will have to balance in the interests of both parties and often their children for the process to work well.

Another thing I’d ask that you keep in mind, particularly if you’re a lawyer, is that it’s so easy and so natural to revert into, what I call “proper lawyer” behaviour, particularly when the going gets tough. I cannot remember a single subject at university on dealing with emotional clients, managing client expectations and managing the emotions that flow from relationship breakdown. The beauty of traditional legal practice is that when everything is done at arm’s length through letters, emails or Court proceedings, it is easy to distance yourself from the heart of the emotions that your client or their former partner are feeling. In a collaborative process, you will be in a room with your client and their former partner and that emotion will be right at the forefront of their negotiation. You cannot ignore it, you will have to find ways of dealing with it and it is often this area that lawyers need to focus on most to improve their skills.

The advantage though is this- If you can find ways of managing your client’s emotions in a collaborative process, this will clearly flow into work that you are doing in all other areas of family law. This can only ever be a good thing, as the emotions that we deal with as family lawyers are often the component of our work that has the most impact on the outcomes that families will achieve.

This is the area that I have had to focus most on in my own skill set as a lawyer. I’ve done this by spending as much time as I can with family professionals – psychologists, social workers – and reading widely, so that I understand better the impact of neuroscience, stress and emotions on the human brain and our decision making capacities. This information and knowledge has enabled me to work well as a collaborative practitioner, but has also enabled me to assist my clients outside of the collaborative process in a far better way.

Collaborative Practice- A tool for your toolbox?

The collaborative process works best for families who are focussed on maintaining relationships, particularly as parents into the future. It offers significant advantages for couples to create a bespoke process and agreements after separation. I would best describe it as a pathway for those seeking a dignified and respectful divorce process.

As a practitioner, collaborative practice offers significant personal benefits as well. The stress and tension for a practitioner that is often associated with litigation is clearly removed through the collaborative process. Importantly, you are able to control the pace and the manner in which a collaborative matter proceeds, which is often not the case with any other legal process. Another beauty of operating as a practitioner in collaborative matters is that you get to work in a team- a team that is often made up of you, a colleague from another firm, sometimes a financial planner, accountant, psychologist or social worker. This is somewhat unique in our work as lawyers, and often the only opportunity we have to genuinely work with other professionals in solving a ‘family problem’. Working in a team environment of itself generates much creative problem solving, and I find relieves so much of the pressure that often comes from having to have all the answers for a particular client.

In a legal world, where proceedings before a Court are now costing families over $100,000, processes such as collaborative practice are thriving. It is perhaps not surprisingly an area in which I hold significant passion because of the significant advantages it offers both our clients, but also us as professionals in a modern legal world.