The Mystery of Civil Collaborative Practice

By Timothy Nugent

This post reflects on collaborative practice, the dispute resolution phenomenon on which my PhD research is focused. Because this research is ongoing, the post concludes with an invitation to participate directed towards to lawyers, and to members of other professions involved in collaborative processes such as psychologists, child specialists, financial advisors, mediators and coaches. To participate in the study, by participating in an online survey, and/or in an electronic interview, please consider this invitation and if you have any questions don’t hesitate to contact me at timothy.nugent@usq.edu.au.

So what is collaborative practice?’ It’s a question I’ve answered many times in the course of my PhD, a study of the potential for collaborative practice beyond its main use in divorce. However, no matter how much information I gather on the topic I’m never entirely sure how I should answer.

In one answer, I explain that collaborative practice is an emerging alternative form of legal practice, initiated by Stu Webb in the United States in the early 1990’s (Webb & Ousky 2011). The defining procedural characteristic of the process is that lawyers represent clients in a settlement role only. If the matter proceeds to litigation, both lawyers are disqualified from further representation in that matter. The parties may litigate but bear the cost of retaining new (adversarial) counsel. I would proceed to discuss the ‘participation agreement,’ a contract or series of contracts that sets out the limits of collaborative representation, and the other duties that collaborative practitioners usually agree to therein: to disclose all relevant materials, to negotiate in good faith, including not taking advantage of errors of fact or law made by the other side, and to resolve the matter by interest-based negotiations rather than positional stances or threats of litigation (Tesler 2017).

In another answer, collaborative practice is an alternative legal culture. A community of lawyers who have become frustrated with the conventional adversarial approach to legal services and have directed that energy into creating a new way of doing things. This impetus for change does not appear to be particular to any one jurisdiction or the approach used in collaborative practice. Collaborative practitioners are active in family law across the United States, Canada, the United Kingdom, Ireland, Australia, and Hong Kong (Tesler 2017). Collaborative practice has even bridged the divide between common-law and civil legal traditions with increasing use in civil law jurisdictions such as Italy and the Netherlands. In November 2018, a group of International Academy of Collaborative Professionals trainers (IACP) conducted the first collaborative training in Japan (IACP 2018). Collaborative practitioners have been active in Australia for around twelve years (Scott & Collins 2017). Collaborative practice associations are active in most Australian States and Territories and have achieved growing recognition for the process among dispute resolution options. The NSW law society website, for example, promotes collaborative practice as ‘the process of choice when neither litigation nor mediation quite fit the bill.’

The answer I rarely give is the personal one, that for me why collaborative is not more widely adopted is a mystery. One which my research hopes to contribute to solving. Collaborative practice was intended as a method of general application, but has struggled to achieve traction in areas of law other than divorce. Between 2006 and 2010, the IACP collected data from its members in relation to their collaborative matters. Of 933 matters reported, 97 percent were divorces, with the remainder comprising mostly other types of family matters (Crescent Research 2010). Only three non-family civil matters were reported: an employment matter, a sexual harassment/retaliation matter, and a probate matter (Crescent Research 2010) Perspectives on this trend have been advanced in the literature, eg. (Hoffman 2003)(Difonzo 2009, p. 600), but the matter would benefit from further empirical attention (Lande 2011, p. 21). My PhD research looks at whether there are opportunities for collaborative practice in other areas of law, and if so, what are the barriers which limit its use or utility outside of family law.

In investigating this issue, it was decided that a particularly broad research frame was necessary. I have been conducting research not only with members of the collaborative practice community, but also lawyers within the traditional adversarial paradigm, and practitioners from other disciplines, such as mediation, or financial planning that have participated in the collaborative process. The common thread among this population is a willingness to reflect on the nature of legal practice, and how to deliver a service for clients that minimises disputes and does not damage relationships going forward but has potential for collaborative practice in areas where it has rarely been used. If you are interested you can contribute to my research by contributing your thoughts, either by completing an anonymous survey, https://surveys.usq.edu.au/index.php/656114?lang=en and/or in an interview. If you would like to know more, please email me at timothy.nugent@usq.edu.au. (Research Ethics Approval No. H18REA076).

Associazione Italiana Professionists Collaborativi (website) http://www.praticacollaborativa.it Crescent Research, ‘International Academy of Collaborative Professionals Practice Survey’ (2010) http://www.collaborativepractice.com

DiFonzo, Herbie J, ‘A Vision for Collaborative Practice: Final Report of the Hofstra Collaborative Law Conference (2009) 38 Hofstra Law Review 569

Hoffman, David, ‘Collaborative Practice in the World of Business’ (2003) 6 The Collaborative Review 1

International Academy of Collaborative Professionals, ’First Collaborative Practice Training in Japan’ (website) http://www.collaborativepractice.com/event/first-collaborative-practice-training-japan

Lande, John, ‘An Empirical Analysis of Collaborative Law’ (2011) 49 Family Court Review 257 Law Society NSW (website), ‘Collaborative Practice’, https://www.lawsociety.com.au/advocacy-and-resources/publications-and-resources/my-practice-area/collaborative-law

Scott, Marilyn and Collins, Pauline, ‘The Challenges for Collaborative Lawyers in Providing CP Processes’ (2017) 31 Australian Journal of Family Law 28

Tesler, Pauline, Collaborative Law: Achieving Effective Resolution in Divorce Without Litigation (American Bar Association, 3rd ed, 2017) Vereniging van collaborative professionals (website) http://www.vvcp.nl

Webb, Stu and Ousky, Ron, ‘History and Development of Collaborative Practice’ (2011) 49 Family Court Review 213–220

Post your comment

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.