Resolution Without Combat

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.

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