An expert in collaborative law or “no court divorce” is visiting the north for a training course this week.
Queensland Collaborative Law is hosting Canadian expert Victoria Smith, who has practised in the area for 13 years.
Listen to Victoria explaining to ABC’s Paula Tapiolas on collaborative practice differs from a court divorce.
FOR most lawyers, the adversarial nature of the traditional legal process is drummed in at law school.
But for Victoria Smith’s students that concept is anathema.
She teaches collaborative practice – an approach that views litigation as evidence of failure – at Canada’s Osgood Hall Law School in Toronto.
The Australian’s Legal Affairs writer Chris Merritt talks with Victoria Smith while she was in Australia training with Queensland Collaborative Law.
A growing number of couples are turning to collaborative law to resolve complex family law cases to avoid the stress and emotional toll of protracted courtroom battles.
Australia has one of the highest divorce rates in the world with current trends suggesting between 32 per cent and 46 per cent of marriages will end in divorce, according to data from the Australian Institute of Family Studies.
In Queensland the number of couples living in de facto relationships has risen from 15 per cent to 20 per cent in the last 15 years with the same issues and pressures causing relationship breakdowns within both groups of separating couples.
This new approach to family law encourages couples to resolve the issues arising from separation in a collaborative way that promotes cooperation and puts the interests of the children first, according to the industry body representing collaborative law professionals in Queensland.
“With collaborative law the clients sign an agreement not to go to court,” said Queensland Collaborative Law president Freda Wigan.
“Instead, they agree to work alongside each other to reach a mutually beneficial agreement with the help of their individual lawyers.
“Independent experts such as psychologists and financial experts are also brought in as needed to offer advice.
“This is a much less aggressive approach to resolving separation differences which gives couples more control.
“If they can co-operate and remain child-focused, they will be better placed to achieve the best outcome for themselves and their children.
“The process is equally effective where no children are involved but where the parties wish to resolve matters in a positive and respectful way.”
Collaborative law is a relatively new form of dispute resolution, pioneered in the late 1990s by Minneapolis family lawyer Stuart G. Webb.
This new method of family law practice is recommended for couples who are keen to resolve issues privately and with minimal conflict and has become a recognised choice for settling family disputes throughout the United States, Canada and much of Europe.
Queensland Collaborative Law estimates there are more than 100 collaboratively-trained professionals throughout Queensland. Many are also members of the International Academy of Collaborative Practitioners (IACP).
“Collaborative practice is growing strongly in Australia, particularly in Queensland as more and more practitioners and couples realise the benefits of a collaborative approach to family law,” said Ms Wigan.
“Compared to the US and Canada, there is still relatively little awareness in Australia but things are changing and we are seeing many clients who want to resolve things amicably and work together in a mutual goal-based process.”
The four pillars of collaborative practice*
The voluntary, free and open exchange of information
The promise not to litigate (go to court ), and the mandatory withdrawal of both solicitors and other team professionals if either party litigates
The professionals’ commitment to use their best skills to assist you in reaching an agreement without having to resort to judicial decision-making
A balanced commitment to respect both parties’ shared goals
*Source: International Academy of Collaborative Professionals
For further information, please contact:
0422 096 049
0414 565 575
Queensland Collaborative Law was established in 2006 and is the leading association for collaboratively trained professionals in Queensland. For more information go to www.qcl.org.au.
Interests based negotiation skills are a key factor in resolving matters arising from the breakdown of marriages and de facto relationships but as QCL vice-president Anne-Marie Rice suggests, this unique form of dispute resolution offers other key advantages.
From adversary to problem solver
Although second nature for lawyers, to many family law clients the concept of trying to resolve a dispute after first amplifying it, is counter-intuitive.
However, in order to maximise their prospects in the traditional legal process, parties are required to define the issues arising from the breakdown of their relationship within tightly defined legal parameters and to then adopt and maintain a polarised position. Understandably, the issues that concern former spouses and partners are not always confined to the concepts articulated in the Family Law Act (and the “no fault divorce” system) and many lawyers regard the exacerbation of existing conflict which results from a positional approach as a necessary evil and one which can be “undone” in subsequent negotiations.
In response to concerns about this approach to dispute resolution, in the late 1990s, Minneapolis-based family lawyer, Stuart Webb, articulated the key ideals of what would become known as “Collaborative Practice”. In 2005 a group of local practitioners founded Queensland Collaborative Law (QCL) and interest among professionals and clients has grown steadily in the past decade. With more than 100 members, QCL is now the largest and most vibrant collaborative organisation in Australia.
Interests based negotiation – not a unique concept
One of the key aims of Collaborative Practice is to reach a compromise that either benefits both parties or significantly disadvantages neither. While some may argue that the principles of the Family Law Act support such an aim, the fundamental difference is that the collaborative process embraces and focusses squarely on the concept of interests based (as opposed to positional) negotiation.
That concept – that parties’ underlying personal interests and concerns must be articulated and addressed in order to reach a lasting agreement and to potentially preserve ongoing co-parenting relationships – is neither new nor unique to Collaborative Practice.
Interests based negotiation is at the heart of the facilitative mediation model, the model upon which National Accreditation has been based since 2008. Many solicitors and particularly family lawyers, are adept at ascertaining their client’s interests, reality testing them and devising practical solutions. Collaborative Practice offers the opportunity to do all of that in a model where both parties are fully aware of the motivations of the other and with the benefit of both solicitors working towards the common goal of a mutually beneficial compromise.
Compromise not combat
Despite popular misconceptions, not all couples who separate wish the other ill. Even where there are no young children involved, many family law clients regard the other party’s ability to also move positively forward with their lives as important and many are encouraged by a process that not only allows, but impels them to consider how this might be achieved.
Mediators often speak colloquially of the benefits of the “stickability” of agreements and one of the keys to reaching an agreement that will last beyond the negotiation process is ensuring that both parties understand what really motivates the other and how any compromise may meet those needs.
Same rules, different mindset
While Collaborative Practice requires solicitors to make a significant paradigm shift in their approach and look for collective solutions to the common problem, the fundamentals of legal representation do not change. Lawyers are still advocates for their client’s interests (albeit handled more sensitively where those interests diverge from the other party’s) and must provide legal advice both within and outside the collaborative meetings. Clients are bound by the same expectations in relation to issues such as disclosure and, in many respects, more is asked of them so far as transparency and genuine co-operation is concerned.
Framing any agreement reached through the Collaborative Process in terms that bind requires the same considerations and skills as the formalisation of any other agreed outcome. The skills of a collaborative lawyer are in addition to, not substitution of, the tried and true skills of the competent solicitor.
How Collaborative Practice can deliver what most clients want
Fundamentally clients want family lawyers to be problem solvers. Most want us to maintain or rehabilitate important relationships in their lives at the same time as providing legal guidance. While Collaborative Practice is ultimately a process of resolution of legal disputes, by identifying and maintaining a focus on the clients’ interests, it allows former partners to find solutions to both legal and inter-personal problems in a way that is simply not available in the traditional, adversarial model.
Obviously, not all clients (or indeed solicitors) are suited to the process, but as a tool in the ever-expanding kit solicitors are expected to access, it offers opportunities for both clients and lawyers, to work constructively to resolve conflict without combat.
Anne-Marie Rice is a director of Rice Naughton Family Law and vice-president of QCL. QCL will host a panel of international experts in Collaborative Practice from the International Academy of Collaborative Practice (IACP) at their Institute on the Gold Coast from 16-19 April 2015. Visit www.qcl.org.au to register.