Mythbusting — Expert Reports, responsibility to both parties, excluding coaches

MYTH

You can’t use Expert Reports obtained during the collaborative process, if the collaborative process breaks down and a Court case starts.

BUSTED

If the collaborative process breaks down, the collaborative lawyer releases his/her file to the client’s new lawyer. The client’s new lawyer may use all the documents obtained during the financial discovery process and experts reports as they see fit. Any notes and minutes of meetings are confidential and cannot be produced in Court. If the parties have obtained a joint valuation or other joint expert report, that can be used in family court proceedings.

What is your view?

MYTH

The lawyer of Party A in a collaborative process has no responsibility to look after Party B’s interests.

BUSTED

In the collaborative process each member of the professional team works with the team and both clients to achieve an outcome that is satisfactory to both parties. As lawyer for Party A, that lawyer has primary responsibility to Party A, but it is a term of the Participation Agreement that both lawyers will:

• Act respectively, honestly, openly, cooperatively and moderately;
• Use their best efforts to create options which are acceptable to both clients;
• Will not take advantage of and will immediately identify and correct any mistakes, incorrect assumptions, admissions and miscalculation anyone makes; and
• Will work together to reach an agreement with both clients.

Party A’s lawyer should also bear in mind that building rapport and trust with Party B aids in persuasion during the process and also models Behaviour for Party A and B.

MYTH

A lawyer can exclude a coach from lawyer-client discussions during a break in five-way meetings.

BUSTED

The Participation Agreement notes that the success of collaboration depends upon all of the professionals and clients working together and everyone acting respectfully, honestly, openly, cooperatively and moderately. It is therefore reasonable for a coach to be present during discussions between a lawyer and their client to understand any hurdles or blockages preventing settlement. The client may ask the coach not to reveal certain information to the other client. If the coach has an understanding of private discussions between lawyer and client, it may assist the coach in facilitating an agreement, notwithstanding the coach has not been granted permission to reveal that information. If the information is relevant to the settlement, it may be necessary for the coach and the lawyers to have a discussion regarding the client’s instructions as to whether that information can be excluded from the process.

The argument to the contrary is that it is the client’s process and they may want to have a private session with the lawyer. The client may also have an issue with the performance of the coach.

If the lawyer is not free to repeat the advice given in private session, in a five-way meeting, then that detracts from the honest, open and cooperative approach which is necessary in collaborative practice. One should always be wary of clients trying to manipulate the process and it may be necessary to refer them back to the Participation Agreement and the ground rules.

There may be circumstances in which it is appropriate to exclude the coach. There is no firm rule and each case has to be considered on its own facts.