Collaborative Practice: novelty or norm?

Collaborative practice is experiencing a revival across Australia in resolving family law disputes, demonstrating maturity in its practice and its dispute management potential and posing questions about whether it can or should be the norm in the resolution of disputes, especially those affecting families.

Image result for collaborative meetings creative commons

In many Family Court registries there are delays of up to three years for cases to reach trial. This has prompted renewed interest in collaborative practice by family lawyers and others involved in family dispute resolution, who inform disputants that it can help them to ‘stay in control of your own decisions and out of court’.  The Family Law Council reported in 2007 on Collaborative Practice In Family Law and further impetus was given in 2011 when the Law Council of Australia released Collaborative Practice Guidelines for Lawyers (the Guidelines).[1]  Specialised training for collaborative practice is being widely conducted, and professional practice groups have been revitalised and formed locally and state-wide, with the launch of the Australian Association of Collaborative Professionals imminent.[2]  These developments represent a maturity among collaborative professionals, as well as reinvigorated confidence in the potential of collaborative processes to resolve family disputes productively, transparently and co-operatively.  It has also led to the emergence of new models of collaborative practice which further indicate its maturity as a dispute management process, and which suggest promising shifts in legal practice.

Collaborative law emerged in Australia more than 10 years ago, following North American experiments in the 1990s to resolve post separation disputes through civilised, respectful non-adversarial, interest-based negotiation.[3]  In Australia collaborative practice is defined as ‘a process in which clients, with the support of a collaborative practitioner, identify interests and issues, then develop options, consider alternatives and make decisions about future actions and outcomes’.[4]  The distinctive feature of collaborative law is a contractual agreement between lawyers and clients to not litigate and to negotiate in good faith.  Lawyers are engaged in a representational capacity and assist clients to understand the law and to be responsible for decision making.  As Marilyn Scott observes, collaborative lawyers ‘need to be able to give sound legal advice’, but also ‘to have advanced skills in dispute analysis, negotiation preparation and strategising skills, excellent people skills and a sound understanding of conflict dynamics and conflict management.’[5]  Parties may also choose to involve non-legal experts such as financial planners, child consultants and psychologists in the collaborative process.

Indeed, this way of managing legal disputes is currently termed ‘collaborative interdisciplinary practice’ to highlight the value of a range of professionals contributing to the management of a dispute and supporting parties to make informed consensual decisions.  All the professionals involved in Australian collaborative interdisciplinary family practice are required to participate in training and to register with a collaborative practice organisation to ensure a shared philosophical commitment to non-adversarialism, and to foster professional networks and standardise practice.[6]

The role of an independent intervener or coach has also emerged as an important component of the current collaborative process, leading to the development of five-way meetings (single coach, lawyers and parties) as the preferred model, at least among many Sydney collaborative family law professionals. The coach generally assumes the role of an independent and impartial facilitator and steward of the process, assessing the dispute and parties for suitability, and assisting the lawyers and parties to make most efficient use of process and maximising their contribution to it. The coach frequently manages the process, including agenda setting and minuting, assists parties to prepare for the meetings and to communicate effectively. They may meet jointly or separately with parties between five-way meetings for various reasons, for example, to facilitate feedback from child consultants, foster parental alliance, clarify party goals, assist parties to develop strategies regulate their emotional state, and to assist the family to transition through the separation.

Coaches may be mental health professionals, but in Australia are also frequently accredited Family Dispute Resolution Practitioners, bringing mediation expertise and authority to issue section 60I certificates should agreement not be reached.  The growing prominence of coaches in collaborative practice is not an ‘an indictment on the ability of collaborative lawyers to perform the basic tasks of the collaborative process’, as Henry Kha suggests.[7] On the contratry, it gives greater weight to Laurence Boulle and Rachael Field’s conclusion that collaborative practice constitutes a ‘more authentic alternative to adversarial justice’ with real promise of creative, client-centred, consensual outcomes in an integrative, multi-professional and flexible process.[8] In Canada and the United States, it is claimed to have settlement rates of over 95 per cent and a straw poll from the Central Sydney Collaborative Forum indicates 85 per cent.[9]

Of course collaborative practice is not suitable or affordable for all disputes or disputants. It is claimed that the cost of collaborative practice is ‘generally less than the conventional adversarial path’ and parties have control over the pace and timing of the process.[10]  A separate intake assessment is required, but the Guidelines do not identify issues to be considered in evaluating appropriateness.[11]  Capacity to negotiate freely in a family context may be affected by violence, risks to safety to parties or children, mental or other health concerns and inequality of bargaining power.[12]  The presence of legal advocates will generally minimise such risks.  It was the presence of a range of professionals in the Coordinated Family Dispute Resolution (CFDR) pilots that made some victims of violence feel that the CFDR process was safe and fair.[13]  Perhaps a blending of the strengths of collaborative processes with those offered by CFDR might lead to an affordable, accessible and safe model of collaborative resolution of family disputes, especially for complex cases which often result in litigation and significant emotional and financial cost.

Because of the greater emphasis in collaborative practice on the values of ‘humanism, emotional expression and the maintenance of relationships’,[14] some commentators argue that it is illustrative of a ‘new advocacy’ challenging traditional assumptions of legal practice and reclaiming for lawyers a role as facilitators of creative and constructive client-centred non-legal outcomes.[15]  If such shifts in legal practice are to deliver the promise of a more positive professional identity for lawyers and more humane legal system then, as Rachael Field, Laurence Boulle and other legal scholars have argued, we need to design legal education to prioritise appropriate dispute resolution expertise and practice.[16]  Whilst it is unlikely in the short term to become the norm in resolving family legal disputes, because of cost barriers or unsuitability, development of greater understanding of collaborative practice among law students may mean it would become normalised rather than novel. It may also be more likely to be applied in a broader range of contexts as suggested by the Law Council, including ‘commercial, community, workplace, environmental, construction, building, health and educational decision making.’[17]

[1] Family Law Council, Collaborative Practice in Family Law: A report to the Attorney-General prepared by the Family Law Council (2007); Law Council of Australia, Australian Collaborative Practice Guidelines for Lawyers (2011).

[2] Collaborative Professionals (NSW) Newsletter 1 (2017); Shelby Timmins, ‘Thinking Outside the Box: Collaborative Practice in Family Law’ (2017) 31 Law Society Journal 88.

[3] See Laurence Boulle and Rachael Field, Australian Dispute Resolution Law and Practice (2017) 54.

[4] Law Council of Australia, Australian Collaborative Practice Guidelines for Lawyers (2011) 4.

[5] Marilyn Scott, ‘Collaborative Law: Dispute Resolution Competencies for the ‘New Advocacy’’(2008) 8 Queensland University of Technology Law & Justice Journal, 213, 216.

[6] Guidelines above n 1, 9-10.

[7] Henry Kha, ‘Evaluating collaborative law in the Australian context, (2015) 26 Australasian Dispute Resolution Journal 178, 184.

[8] Boulle and Field, above n 3, 247.

[9] Judge John Pascoe, Collaborative and Creative approaches to family dispute resolution: Perspectives from the Bench, Federal Magistrates Court, 2; Email communication from Rachel Slat, Accredited Specialist (Family Law).

[10] Timmins, above n 2, 89.

[11] Guidelines, above n 1, 5.

[12] Family Law (Family Dispute Resolution Practitioners) Regulations 2008, reg 25.

[13] Rae Kaspiew, et al, Evaluation of a pilot of legally assisted and supported family dispute resolution in family violence cases, Final report, Australian Institute of Family Studies (2012) 111.

[14] Boulle and Field, above n , 246.

[15] Scott, above n 5, 228. Also Julie Macfarlane, The New Lawyer: How Settlement Is Transforming the Practice of Law, University of British Columbia Press (2008).

[16] Boulle and Field, Ch 13, and references cited therein. Also Scott, from 229.

[17] Guidelines, above n 1, 5.

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About Dr Susan Armstrong

Sue Armstrong is an Adjunct Professor in the School of Law, Western Sydney University, Australia. She is an accredited Family Dispute Resolution Practitioner and a collaborative practice coach. She publishes, researches and teaches about family dispute resolution.

2 thoughts on “Collaborative Practice: novelty or norm?

  1. Interesting piece Susan. Would be very interested in further discussion on this area and use of arbitration.

    One thing that immediately springs to mind is the difficulty that arises from family lawyers having “lost their way” and having perhaps neglected the practical skills of a lawyer in their desire for “uniqueness”-understanding how to plead or critically construct an allegation, define and address issues in dispute and prove a case. The confusion, for example, about disclosure as a means of defining and resolving issues and as an “investment in settlement” leads to matters dragging on that can and should be resolved (and are
    In other jurisdictions). Whilst family law disputants have emotional investment the realities of any commercial dispute dictate that clear and appropriate advice on outcome (and ability to prove facts relevant to obtaining that outcome) is given.

    To that end there is, very much, th and potential for collaborative practice to be a novelty. Collaborative practice, without the specific modelling understood that term at present, was the norm and again should be at least in the context of that opined by Greenleaf in 1834 that the lawyer “concerns himself with the beginnings of controversies, not to inflame them but to extinguish them, he is a peacemaker”

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    • Thanks Joe. I take your point re commercial disputes, but I think any disputes arising from a relational context would benefit from a collaborative approach. Perhaps that is what happens de facto with many FL disputes now? Although discussion is the main resolution pathway of 85% of FL disputes, this is also generally done in consultation with lawyers, mediators and/or counsellors or other professionals. I guess it is working out the most appropriate model for complex disputes, and a ‘standard’ multi-disciplinary approach that prioritises relationship, and maximises the peacemaking role of lawyers.

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