Collaborative Dispute Resolution

Collaborative Dispute Resolution

Collaborative Practice is about cooperation, not confrontation.  It is problem solving with lawyers where the parties decide from the outset that it is in their interest to resolve the issues between them rather than to adopt an adversarial approach leading to the delays associated with legal proceeding and spiralling costs of litigation.

It is a process that encourages the parties to engage in “good faith negotiation” where the parties cooperate in a process of integrative problem solving with the benefit of legal advice from their lawyers while engaged in a non-adversarial negotiation process to design mutually acceptable solutions to often complex issues.

  • Each client is represented by their own collaboratively trained lawyer throughout the process.
  • Both lawyers help their client and the other party work as a team to:
    • find and focus on common interests;
    • understand each other’s concerns;
    • gather and exchange information;
    • explore and test a wide range of possible choices; and,
    • reach mutually acceptable solutions designed by the clients.

How is collaborative law different?

  •  The collaborative lawyers and the clients sign a contract at the start of the process by which they agree that they will not go to Court or use threats of litigation as a “lever” to solve the dispute.
  • If the collaborative process fails, the lawyers and their law firms agree to withdraw from the matter and to cease acting for their respective clients.
  • The collaborative law process involves intertest based integrative bargaining which is significantly different to the traditional positional bargaining approach usually used by lawyers in the adversarial process.
  • Negotiations are carried out almost entirely in four-way meetings which are attended by both lawyers and both of their clients (and any appropriate experts e.g. accountants or financial advices etc).
  • In the collaborative law process both clients will:
    • treat each other with respect;
    • listen to each other’s perspectives, interests and concerns;
    • negotiate in good faith;
    • explore all possible choices;
    • let go of the past in order to focus on the future.

Is the collaborative law process the right choice?

Collaborative dispute resolution is an alternative dispute resolution process that has many advantages over traditional court based dispute resolution.

The clients have skilled, collaboratively trained, legal advisers at every stage of the process.  The lawyers understand how to reach creative settlements by “enlarging the pie”.  The clients are never “on their own” or “out of the loop”; their lawyer is at the client’s side, advising and assisting them to achieve goals by mutual participation and agreement which are often far more creative than solutions that a Court is able to impose on the parties.

Some points about the 4 way collaborative process:-

  • the clients and their lawyers agree in advance to work towards a settlement that will be acceptable to both clients.  Litigation can never be threatened.  The collaborative lawyers are committed to ethical good faith negotiation will not permitted or engage in “playing games” or tactics to take advantage of each other.
  • the lawyers share with their clients a financial incentive to make the collaborative process work.  The lawyers have not succeeded unless they help their client to create a mutually acceptable solution.  They are “out of a job” if the process breaks down.
  • the lawyers are concerned to uphold the integrity of the process, the interests of their clients and the appropriateness of outcome.
  • the clients and the lawyers work together as the members of the “settlement team”, rather than working against each other as “opposing parties” to:-
  1. identify what is important to each client (interests);
  2. identify what questions the clients need to answer (issues);
  3. gather necessary information;
  4. create the maximum number of choices / options (enlarging the pie);
  5. evaluate and test those options, modify and refine them as necessary;
  6. negotiate to a mutually acceptable agreement; and
  7. preserve relationships and provide closure for the parties.

If the collaborative process sounds more attractive to you than litigation, then call us on 1300 783 634.