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Collaborative Family Law 'innovation' ?

Discussion about moves to introduce collaborative law (interest-based bargaining) as a replacement for positional bargaining.

An article FYI by way of background.

Many of these changes are illusionary, and the reality of Robin Hood legals robbing Dads to give to Mums continues (with the children used as leverage).

http://www.ebalawyers.com.au/index.pl?page=111

Collaborative Law in Family Law

On Friday 2 March 2007, the Federal Attorney-General, Philip Ruddock formallylaunched five websites for state-based collaborative lawyer associations including for Canberra. The launch took place at the Family Court building in Sydney. The Chief Justice of the Family Court was present via video link up and many family law practitioners representing the different regional Collaborative Practices throughout the country were also present.[1]

Collaborative law is a way of resolving family law disputes that requires the parties and their respective solicitors to enter into a contract the basic tenet of which is that the parties and their respective solicitors contract out of litigation and agree to resolve all matters in dispute by negotiation. The core elements of collaborative law are that the parties and their respective clients enter into a contractual arrangement :

  • To "negotiate a mutually acceptable settlement without using court to decide any issues for the clients"
  • For the "withdrawal of the professionals if either client goes to court"
  • To "engage in open communication and information sharing, and
  • To create shared solutions that take into account the highest priorities of both parties"[2]
Negotiations within the collaborative law model is superior to mediation for a number of reasons. Normally, in mediation parties take positions based on their expectations about legal entitlements. Instead the approach in collaborative law is focused on individual parties' needs, it is open and problem-solving. The table below lists some basic differences between "positional bargaining" as against "interest based bargaining".

Positional Bargaining
Interest-based Bargaining
Moving target, False demands Based on hopes and concerns
Win/Lose Mutually acceptable agreements
Use of emotions to manipulate
Stare downs / Flinching
Focus on objective criteria
Use of people and personality to manipulate Problem solving and open
Not concerned with relationship with children, extended families Focus on children and concern about other client
Focus on past Future focused
Forced resolution Creative problem solving
Dividing the family Re-structuring the family
Limited choices
Divide Resources and split the difference
Explore choices and expand the resources
Combative
Creative
Equal
Equitable

A number of experienced, well-seasoned family law solicitors in Canberra have embraced collaborative law and solicitors in approximately ten firms in Canberra regularly resolve family law matters through the collaborative system. It is interesting that the collaborative law model was invented and developed by successful family law litigators in Canada and the United States who has become disillusioned about the effects of litigation in family law and sought to find a better way to deal with this type of matters out of court.

[1] ABC Online-2007 at http://www.abc.net.au/pm/content/2007/s1861944.htm

[2] Collaborative Lawyer Handbook L.H. 1.5 CDTT LLC - Principles of Collaborative Practice - IACP

Collaborative law given thumbs up

http://www.abc.net.au/pm/content/2007/s1861944.htm

ABC Radio - PM
Friday 2 March 2007 18:39:00

Collaborative law given thumbs up
Reporter: Sabra Lane

This is a transcript from PM. The program is broadcast around Australia at 5:10pm on Radio National and 6:10pm on ABC Local Radio.

You can also listen to the story in REAL AUDIO and WINDOWS MEDIA and MP3 formats:

http://www.abc.net.au/reslib/200703/r129188_425079.ram

http://www.abc.net.au/reslib/200703/r129188_425087.asx

http://www.abc.net.au/reslib/200703/r129188_425072.mp3

MARK COLVIN: Collaborative law is a relatively new way of resolving disputes and today, it gained significant approval from the Family Law Council, the Federal Attorney-General, and the Chief Judge of the Family Court.

Collaborative law is a way of solving legal disputes, or family separations, by avoiding court. In fact, collaborative lawyers agree to be sacked from the case, if they can't negotiate a settlement which pleases both sides of the dispute.

Sabra Lane reports.

SABRA LANE: A jaded American lawyer invented the concept collaborative law in the 1990s.

He thought it was stupid that often, despite months of wrangling, and thousands wasted in legal fees, many marriage bust-ups were finally settled through negotiation on the day they made it to court.

He wondered if that negotiation process could happen without going anywhere near a courtroom.

Under this type of dispute resolution, all negotiations happen face-to-face.

Collaborative lawyer, Lorraine Lopich.

LORRAINE LOPICH: It gives the clients back their dignity, and it gives them back the dignity of being in control of resolving those matters themselves but with the assistance of lawyers. If it goes to litigation, the lawyers must disqualify themselves. They cannot continue in the process.

SABRA LANE: John Pollard, the President of Collaborative Professionals New South Wales, says in divorce cases involving children, collaborative law can take the retribution out of settlements.

JOHN POLLARD: If they use collaborative practice to resolve it, they can still maintain their relationship rather than destroying it, because if you go to court against someone, that will be the end of the relationship, you'll never have that trust and respect for one another again.

SABRA LANE: How do you find it?

JOHN POLLARD: It should account for less stress on the lawyers as well as for the clients in resolving things because most of the work is done in four-way meetings, where the two lawyers and the two clients will sit down around the table and they'll talk about the issues and try to identify the needs of the parties, how they can work out a solution that's going to satisfy the needs of each of the parties.

And that is done in a far more relaxed way than having litigators or having negotiators who are using positional bargaining and talking about what the law is and what would happen if we went to court, and that kind of thing. All that's prohibited.

SABRA LANE: Lawyers started practising collaborative law in Australia nearly two years ago. Four hundred lawyers are now trained in how it works.

Today, Federal Attorney-General, Philip Ruddock, launched five websites for state-based collaborative lawyer associations.

Importantly, the launch happened within the Family Court building in Sydney, witnessed by the court's Chief Justice, Diana Bryant, who spoke via a video link-up from Melbourne.

DIANA BRYANT: Sometimes when the negotiations get too hard, it's all too easy to fall back on the court in the background. But collaborative law is, in my view, another really important tool in the toolbox, one with great potential to improve the experience of resolving family law disputes for clients.

SABRA LANE: Philip Ruddock hopes it'll bring a cultural change to family law, the kind he hoped for when no-fault divorce was introduced in 1975.

PHILIP RUDDOCK: Now, I thought the culture would change back in the 70s. It really didn't.

And what we've sought to do recently with changes in the Family Law Act is to put in place arrangements where, particularly in relation to children, people are encouraged to sit down first and to try and work out what best arrangements can be put in place to ensure that a child is able to exercise the right to know both parents.

SABRA LANE: The Family Law Council also released a report today, endorsing collaborative law and recommended that all divorcing couples who seek help from the Federal Government's relationship centres be told that this is an alternative they can choose, instead of going to court.

The Attorney says the council's recommendations appear reasonable; that the system is ready to adapt and that lawyers will too.

PHILIP RUDDOCK: It doesn't mean you can ignore legal entitlements or responsibilities. You have to make your decisions in the knowledge of those matters, and that's where the legal profession can help you.

But they don't necessarily have to help you to spend every last dollar in a court trying to resolve the matter. In order for this to happen, it doesn't need substantial change to our law. What it needs is a change in the culture.

MARK COLVIN: The Attorney-General, Philip Ruddock, ending that report by Sabra Lane.
I would have more faith in "collaborative law" than in mediation because the agreement would be formalised immediately, rather than having to get sign off from the court.

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