Collaborative Practice

Why do we need to sign a Collaborative Law agreement?

Whilst there are many forms of dispute resolution which do not require an agreement or understanding of the process to be signed at the start, Collaborative Law required such an agreement. The agreement sets out the basis on which the process will proceed and helps all participants in the process understand their role. The agreement also includes a list of protocols which sets out how all participants are to behave whilst collaborating.

What legal effect does signing the agreement have in Collaborative Law?

When the lawyers sign the Collaborative Law Agreement, this means that they undertake never to represent either party in Court should the collaboration not succeed. You or your former partner can elect at any time to opt out of the process and one or both of you can choose either another form of dispute resolution or either of you can proceed to Court. However, the lawyers who have signed the Collaborative Law contract cannot represent either of you in Court proceedings.

Can my lawyer give me advice during the process?

Yes. You can ask your lawyer to give you legal advice at any stage of the process. This can be done one on one during the meetings to help you prepare for the team meetings (often referred to as four way meetings but if other professionals are involved, then they may be five, six way etc). You can request legal advice during a team meeting and can either receive the advice in front of your former partner or you can ask for a time out to receive that advice confidentially from your lawyer.

If we go to Court and want to opt back into the Collaborative Law process – can we?

Yes – you and your former partner can agree to opt back into the process at any time. Ideally your lawyers should we able to provide alternatives to the court process if the Collaborative Law process breaks down.

How, when and where do we meet?

This is your process. This means you get to decide the frequency of the meetings with your former partner and the lawyers. This can be done either at the commencement of the first meeting or can be done at the conclusion of each meeting. If there are other professionals involved, such as counsellors or financial planners, then meetings will be arranged at mutually convenient times for all who are participating.

The meetings are limited to two hour periods as this is the optimum time in which to work constructively as a team.

You can meet with your lawyer in order to prepare for the team meetings. The time spent will be at your and your lawyer’s discretion and depending on your needs.

Before each meeting, the lawyers will discuss the items to be put on the agenda and these items are determined in discussion with you.

After each meeting, you get to tell your lawyer what worked well for you in the meeting and you will also get the opportunity to make comment on what did not work well. The purpose of this discussion is to ensure that each meeting moves your matter towards a mutually acceptable solution with your former partner in a manner consistent with your understanding of the process.

The location of the meetings usually alternates between the two lawyers’ offices unless another mutually agreed location is chosen.

What happens if we get stuck on an issue in the Collaborative Law process?

Collaboratively trained lawyers are skilled in assisting you and your former partner overcome obstacles to settlement. There are many options available and these can be explored with the lawyers during the four way sessions.

Who else is involved in the Collaborative Law process?

Apart from you, your former partner and your respective lawyers, other professionals are engaged from time to time. These may include a financial planner or planners, a valuer to value real property or business interests, an accountant or accountants if there are issues relating to financial matters such as tax, capital gains, and any other financial ramifications of the sale of assets; a family counsellor or other therapists.

Do I get to see all the financial documents my former partner has?

Regardless of whether you are litigating, mediating, negotiating or collaborating, the obligations on each of you and your former partner in relation to the production of financial documents is the same. Each of you is under an obligation to produce all financial documents which are relevant in your possession or under your control. This means that if someone, such as your accountant, has documents relevant to the marital period or to your financial position, then you are obliged to produce those documents and the same applies to your former partner.

If you believe that your former partner is not providing all the documents necessary for you to be able to continue in the Collaborative Law process, then your lawyer can assist you to obtain those documents. Your lawyer can, for example, ask your former partner to provide an authority to enable you or your lawyer to approach third parties and obtain documents.

If there is a fundamental issue of a lack of trust surrounding this or any other issue, having exhausted all means available to alleviating the lack of trust, either you or your former partner can elect to opt out of the Collaborative Law process.

What is the success rate of Collaborative Law matters?

The success rate is approximately 76%. This is based on data collected by the IACP (International Associated of Collaborative Professionals). This rate is very high and whilst we are collating data for Australia, we anticipate it will be along similar lines.

What if my former partner hasn’t heard about Collaborative Law?

We can introduce your former partner to the concept of Collaborative Law in a way that makes it an attractive option for them. We will workshop some of the options for having that conversation with you as you will know them better than anyone else and therefore you will know what will and will not work

Is Collaborative Law for everyone?

Collaboratively trained lawyers are trained to screen those clients who may not be suitable for the process. Collaborative Law is not suitable if there has been domestic violence in the relationship or if there is a serious drug or alcohol abuse problem or an underlying lack of trust.

Those people who suffer from a psychological or psychiatric condition may be suitable to participate in the process provided the lawyers are able to make a preliminary assessment as to suitability and are able to obtain the ongoing support of the professional responsible for supporting the participant. This may mean that the lawyer who represents the participant will want to speak to the psychologist/psychiatrist before proceeding to advise the client to sign a Collaborative Law Agreement. That lawyer may also need to have a discussion with the other lawyer about their client’s suitability. This does not mean the lawyer will breach client confidentiality as it is a necessary threshold issue in determining whether this process is right for both participants.

Are the children involved?

This process is very much focussed on creating solutions for the family as a whole and takes into account what is in the best interest of the children. The children are at the forefront of any discussion between the lawyers and the clients. The children do not attend the four way sessions. They may, however, be involved with meeting a family counsellor or therapist who then works with you, your former partner and the lawyers in crafting solutions that are child focussed.

Agreement also needs to be reach between you and your former partner as to what matters are discussed with the children in relation to the separation, the Collaboration and what interim and then final arrangements the two of you agree upon.

We work with professionals who are highly skilled at working with families and children and will offer assistance and their insights as to what may work for your family.

It is important to remember that your family is still a family after separation.

Who pays for the Collaborative Law process?

At the first team meeting (which may be limited to you, your former partner and your respective lawyers) there is usually a frank discussion about the charge out rates of the two lawyers. The purpose of this is to decide on a division of labour.

There is also a frank discussion about how each of you and your former partner are going to pay for the legal and other professional services which you may require during your Collaborative experience.

Can my partner and I be represented by one lawyer?

No. Each party is separately legally represented because during the process legal advice is given to the clients on demand and this advice is specific to the individual.

What if I don’t agree with a value of an asset?

You and your former partner will be reaching agreement on what assets and liabilities form the pool to be divided between you. If you do not agree with a value being attributed to an asset by your former partner, then this can be discussed at a team meeting to see if agreement can be reached and failing agreement, a valuation can be obtained. Those valuations can be a market appraisal, a sworn valuation or an agreement can be reached to sell an asset during the Collaboration.

What if the Collaboration is proceeding too slowly?

It is important to remember that most Collaborations take approximately ½ the time that it takes to litigate a matter in Court. Most matters resolve within 6 to 8 meetings with your former partner. If you believe a party to the Collaborative process is causing the delay, then this is an issue you should raise with your lawyer who can then explore this as a process issue with your former partner’s lawyer. Sometimes there may be a simple explanation as to why delays are occurring.

What do we end up with at the end of a Collaboration?

When a matter is successfully completed by virtue of the Collaborative Law process, you will end up with the exact same product as if you were negotiating, mediating or litigating (as if you settled your matter prior to a final hearing). In short, you and your former partner may elect to enter into Consent Orders which are ratified by the Court. Alternatively, you may enter into a Financial Agreement. If you reach agreement about issues such as ongoing financial support for the children, then you may also enter into a Child Support Agreement. You are your former partner can then talk to your Collaborative lawyers as to what legal documents are advisable at the conclusion of your matter.