The adversarial method of dispute resolution has been tried and tested throughout the common law world and is today still the most common form of dispute resolution in western societies.
Why then is there an ever increasing number of people, both litigants and lawyers, who take the view that the Courts do not dispense justice, they simply provide certainty through the administration of the law?
Judges and magistrates apply the law in proceedings before them which are governed by the rules of evidence. Issues of admissibility and relevance serve to limit and restrict what can be put before the Court. The result is often that litigants often feel that the decision of the Court has been made based on less than the whole “story”. The result is that the parties consider that they have not been heard and the decision imposed on them is not “fair” or appropriate.
Courts and the adversarial system are however but one tool in the dispute resolution toolbox and there are alternatives.
Alternate Dispute Resolution
Australia is recognised internationally as a leader in the field of mediation. Mediation has been used in Australia for close to 30 years to resolve disputes in almost every sphere of disputation from international issues to neighbourhood disputes with a significant degree of success.
Alternate dispute resolution practitioners are skilled negotiators and facilitators, who are able to identify commonalities between parties who are in dispute. The practitioners then guide the parties through a process that does focus on their entire “story” to reach a settlement of the issues between them.
The following outlines the process that is most commonly engaged in by lawyers who conduct settlement negotiations:-
Party A asserts that their claim is worth not less than $x, their legal argument is supported by precedent and that there are a number of serious problems with the other side’s evidence that they appear not to be able to address satisfactorily.
The other side of course, denies having any problems with their evidence. Says instead that party A’s claim is worth but a fraction of $x and that the authorities referred to by counsel for party A are all distinguishable. Apart from which, if party A does not accept party B’s offer of settlement, party B will be asking the court for costs on an indemnity basis for one reason or another.
Simply put this is classical “positional bargaining”. It is employed by litigation lawyers in settlement conferences and settlement negotiations. It is conducted between the lawyers and often in the absence of the clients.
Central to this form of negotiation is the threat that if the other side refuses to accept the offer currently on the table then the matter will go to the judge or magistrate to be decided at the peril of the other party.
Alternate dispute resolution practitioners will say that there is a better way of resolving disputes that actually addresses the needs and interests of the disputing parties. More importantly, it allows the parties themselves to discuss the issues and to explore the possibilities of settlement themselves.
In the facilitative model of mediation however, mediators are handicapped in that they are required to be neutral and not to offer or provide advice to the parties in dispute.
Collaborative Law is a further development of mediation.
The Collaborative Law process is designed to “resolves disputes respectfully”. It is law without litigation and mediation with advice. Collaborative Professionals are committed to assisting the parties to resolve their own disputes with all of the benefits of mediation.
Collaborative Law is a relatively new tool in the alternate dispute resolution practitioner’s toolbox. It is different from mediation in that the Collaborative Lawyers are working both on behalf of their client but also using mediation skills. The Collaborative Lawyers are an advocate for their clients and will advise their clients of the legal issues affecting their matter but unlike their litigating cousins, Collaborative Lawyers will not go to court.
The Collaborative Lawyers and their clients all contract at the commencement of the matter that the lawyers must disqualify themselves if the settlement negotiations break down. Further, the negotiations may be brought to an end if either side uses the threat of litigation as a means of coercion to achieve their goal.
Instead of creating an atmosphere of intimidation and fear where the lawyers control the discussions under the threat of a court imposed outcome, the collaborative environment is one in which the parties and their Collaborative Lawyers are focused on the resolution of the dispute through the use of principled negotiation.
The settlement of the dispute between the parties therefore is not the by-product of the litigation process where the parties involved are willing to accept the fallback position of a court imposed outcome but is instead, the stated aim and purpose of the entire Collaborative Process.
The Collaborative Process is future focused. The parties are encouraged and guided through a process in which their needs and interests are identified, options to meet or satisfy those needs and interests are explored and developed and the parties effectively design their own outcome to their dispute with the benefit of the advice and skills of their Collaborative Lawyers.
The Collaborative Lawyers and the Coach/Facilitator assist these negotiations. Unlike litigation which destroys the lines of communication between the disputing parties by the use of a lawyer directed process, the parties are helped by the Collaborative Lawyers and Coach/Facilitator to re-establish those lines of communication and to conduct the negotiations themselves.
The Settlement Team
The concept of a “settlement team” is one of the indicia of the Collaborative Model of dispute resolution.
From the outset of the matter, the lawyers and their clients are committed to reaching a negotiated settlement of the dispute confronting them. They are all part of the settlement team.
It is common in litigated disputes for vast quantities of documents to be generated. Detailed pleadings are prepared and filed supported by encyclopaedic affidavits painstakingly prepared from evidence provided by the parties to the dispute and their army of witnesses.
Discovery is made and sought resulting in mountains of documents. Then subpoenas are issued and served. More documents!!!
The collaborative settlement team on the other hand generates little in the way of documentation. The parties are required by the Participation Agreement signed by them at the outset of the matter, to make full, frank and honest disclosure of all relevant documents in their possession or control. These documents are tabled at the four way meetings of the settlement team but no notices for discovery, subpoenas or pleadings are prepared or filed.
The settlement negotiations are privileged and confidential.
Multi-professional and Interdisciplinary Teams
It is common for multi-professional or interdisciplinary settlement teams to include other professionals such as child consultants, coaches, and financial experts from the outset. Known as the “Interdisciplinary model”, the clients engage a “full team” of experts and are prepared by them so that they can more effectively engage in the collaborative meetings.
Part of the Collaborative method of dispute resolution is the ability to bring in experts as and when decided by the parties.
These experts form part of the settlement team and as such they are bound by the same rules. They are therefore not able to act in their professional capacity for either party in the event that the settlement negotiations fail. Like the Collaborative Lawyers, they too must disqualify themselves from acting further for the parties or either of them.
The type of expert that may be brought into the team depends on the nature of the dispute between the parties. An environmental scientist may be brought in by the parties to a dispute relating to an environmentally significant development; a building engineer in a construction matter; an expert surveyor for a property matter and so on.
The expert is therefore the settlement team’s expert. As such their role is to employ their particular expertise in a way which will best advise all of the parties on how to address or solve a particular issue.
In Collaborative Law an impasse between the parties may also be addressed by engaging a mediator to assist the parties to negotiate a particular issue although often the coach/facilitator can aid parties to overcome the obstruction. Further, an opinion may be sought from counsel on a particular issue if the parties consider that they need the assistance of such advice.
The Collaborative Process is extremely flexible and able to meet the requirements of the parties without the concern of having to meet court imposed deadlines.
In theory, any matter that is capable of being litigated is capable of being resolved through the Collaborative Process. Family Lawyers in the USA, Canada, UK, parts of Europe and Australia have been quick to recognise the benefits of Collaborative Law. However, other civil and commercial issues as diverse as disputes between franchisee/franchisor, lessor/lessee, employer/employee, contracts for the supply of goods or services, disputes between company directors or business partners, building matters and family provisions matters, to name but a few, are all eminently suited to the Collaborative Law process.
Collaborative Practice is not a panacea; it is another dispute resolution tool for the use of dispute resolution professionals, a further tool to be included in their toolbox together with mediation, conciliation, arbitration and litigation.
It does, however, require the appropriate training of lawyers and other professionals wanting to engage in Collaborative Practice to ensure that the interests of clients are protected and to preserve the integrity of the process.