Frequently Asked Questions
Collaborative law is not for everyone.
It will be of interest if the following are important to you:
- you want a dignified, non-aggressive resolution of the issues;
- you and your partner have children and wish to reach a resolution by agreement with their needs and interests at the forefront; or
- you and the other party(ies) to the dispute need to maintain an ongoing business, neighbourhood or family relationship and wish to reach a resolution by agreement to preserve that relationship;
- you do not wish to incur the costs and animosity generated by court litigation;
- you value retaining control over decisions about restructuring your business affairs, financial arrangements or arrangements in relation to the children, but with advice from experts;
- you do not wish to hand over such decision making either to your lawyer or to a judge;
- you want your dispute and the terms of any subsequent settlement agreement to be confidential;
- you need the assistance of a lawyer to help you negotiate in face to face meetings;
- if you are parents, you need to maintain a respectful co-parenting relationship.
Collaborative law will not be the right option for you if:
- your main objective is to “seek revenge” or to “have your day in court”;
- you are looking for a “soft option”;
- you think that the process will allow you to “out-manoeuvre” the other party;
- you are hoping to get away with giving less than a full and frank financial disclosure!
- In cases where there is a history of domestic violence or other abuse, the collaborative family law specialists will need to consider very carefully whether the case is suitable for the collaborative process and are likely to insist on the involvement of other professionals in the process to ensure that the interests of you, your partner and any dependant children are adequately protected and represented.
Mediation involves a neutral third party who facilitates discussion between you and does not give legal advice. In Collaborative Practice you have your lawyer with you in '4 way' or '5 way' meetings who will advise and support you throughout the negotiation. You will also hear the advice your partner is getting throughout the process.
- All professionals involved in the Collaborative Process are bound by the professional conduct rules of their respective professional organisations and have a strict duty of client confidentiality.
- Any discussions or documentation, (with the exception of financial disclosure documentation see below), are legally privileged and conducted on a “without prejudice” basis which means that they cannot be used in court.
- This confidentiality will be overridden where any of the professionals involved have a professional obligation to make a report to a relevant authority, for example, if a child is considered to be at risk.
- If the Collaborative Process fails, you and your partner may not use any of the information or documentation generated during the Collaborative Process other than that relating to financial disclosure.
- Participants in a Collaborative Process negotiation agree not to go to court and cannot use the threat of going to court as a means of coercing the other party to agree to or to accept a position. This assists to facilitate the conduct of negotiations in good faith and to honestly consider the interests of the parties. Accordingly, going to court is not an option for your Collaborative Lawyer. Going to court is only possible if there are urgent reasons that require it (eg: to preserve an asset) and only after the collaborative process is terminated and new legal representatives appointed.
- The reason that Collaborative Law has been successful in other jurisdictions is that the lawyers are disqualified from acting for the client should collaboration fail. A disqualification agreement underlines the fact that all the parties are attempting to achieve settlement without threatening or being subject to the threat of court proceedings when things become difficult.
- By agreeing at the outset not to go to court, you, the other party and the lawyers can be encouraged to reach creative settlements, (of course having regard to the legal position), but having you and the particular interests of all the parties involved at the forefront of any settlement proposals.
- Particularly in family law matters, a coach/facilitator is recommended to assist and manage parties' communications and understanding of each other's perspectives
- In many disputes, especially matters involving children, there are other professionals such as counsellors and family therapists who can offer expert advice and assistance to you. Learning how to communicate with one another and resolve conflict as it arises will be invaluable long after the ‘legal process’ is finished.
- In disputes involving financial matters, financial advisers or valuers or accountants may be needed to provide information or advice. Similarly, environmental experts or surveyors may be called upon to assist the process in other types of matters.
- The Collaborative Process is very flexible and other professionals may be used in a team approach to work with or alongside your lawyers. You may wish to see them separately or together in a meeting with the lawyers or they may report to a meeting. How such an expert is used is decided and agreed by you.
- Some lawyers in Sydney and in other areas of New South Wales offer collaborative law as an option in their dispute resolution services in the areas of family law, civil disputes and commercial law. It is essential that both parties have collaboratively trained lawyers. Most Collaborative Lawyers (and other professionals) belong to practice groups and are members of Collaborative Professionals (NSW) Inc.
- If you think that the Collaborative Process may be an attractive way of resolving your dispute, speak to your own lawyer about the process or contact one of the members of Collaborative Professionals (NSW) Inc.
- As with the conventional legal process, different lawyers have different charging rates. The lawyer you instruct will explain to you the basis of their charging structure and will go through their firm’s terms of business with you.
- As long as you and your partner act in good faith, provide the information requested of you within the timescales agreed and cooperate in the process, the Collaborative Process will inevitably be quicker and cheaper than a dispute resolved by a court hearing.
- The issue of how the costs of the Collaborative Process are to be met can be addressed at the first '4 way' or '5 way' meeting. Unless there is an agreement to the contrary however, you and the other party will each be responsible for your own solicitor’s costs and will be invoiced in accordance with your own agreement with your solicitor.
- You and your partner will each retain a family lawyer to advise you throughout the process.
- Your lawyer will discuss with you in your introductory meeting or telephone call whether your case is suitable for the collaborative process.
- You, your partner and your lawyers will all sign a Participation Agreement setting out the ground rules for the Collaborative Process and stipulating that if either client commences court proceedings, both collaborative lawyers will be disqualified from representing either client.
- Underpinning the Collaborative Process is an understanding that you and your partner, (and your respective lawyers), will act in good faith, be open and honest in your dealings with one another and respect the fact that different views will need to be expressed to achieve a fair settlement.
- The majority of the negotiations will take place at '4 way' or '5 way' face-to-face meetings between you, your partner, the lawyers and the coach/facilitator. Correspondence between lawyers is kept to a minimum. By being present throughout the negotiations, you and your partner retain control of the outcome. The scope for misunderstandings is reduced and you will be assisted in communicating with each other in a non-confrontational way, which is particularly important if you are parenting children together.
- The meetings are minuted and action points for future meetings agreed. Where appropriate, you will be encouraged to draw on the skills of other specialist advisers, such as accountants to assist with financial disclosure, or child counsellors to discuss an issue which may have arisen in relation to the care of your children.
- Once a settlement is reached, the lawyers will draw up a Settlement Agreement which will usually be submitted to the court for approval and made into a consent order.
- This can of course happen as it does sometimes in mediation or in the conventional legal process. Under the terms of the Participation Agreement, the lawyer must withdraw from acting for their client if he/she has withheld or misrepresented information intentionally, or is participating in the process in bad faith. Likewise, it is open to your Collaborative Lawyer to advise you to withdraw from the process if they do not consider that the other party, (or indeed their lawyer), is keeping to the terms of the agreement.
- If after a settlement agreement has been reached through the Collaborative Process, you discover that the other party has failed to disclose relevant information, then Collaborative Law is no different from any other negotiated settlement. If the outcome of that settlement would have been different had the information been available, it is open to you to seek to overturn the agreement, even after it has been approved by the court.