Law Without Litigation – Mediation With Advice, And More

On 5 February 2007 there were approximately 190 trained collaborative professionals inAustraliapractising in four states and the ACT.  On 2 March 2007 the Australian Attorney-General will simultaneously launch websites for associations representing approximately 330 collaborative practitioners in four states and the ACT.  Collaborative practitioners inTasmaniahave not yet formed as association.

During February eight international trainers were inAustraliato facilitate this growth and more are on their way.  In May 2007 LexisNexis will bring Pauline Tesler, one of the most respected Collaborative Practice trainers, toAustraliato train approximately 200 further practitioners.  A collaborative practice session is included in the majority of legal conferences, forums and convention during March 2007.  The growth in the number of trained collaborative practitioners is set to grow at this considerable rate for some time into the future.

What is collaborative practice?

Collaborative practice is the brain child of aMinneapolislawyer, Stu Webb.  In 1990 Stu was a jaded family law practitioner who “just could not take it anymore”.  Instead of retiring Stu developed collaborative practice to save his clients from soul destroying litigation and to make practising his profession fun again. 

Collaborative practice is about cooperation, not confrontation.  It has been described as “Law without litigation / Mediation with advice”.

It is  problem solving with lawyers and other professionals that the clients need to assist them to understand each others perspective and find their own resolution.  The clients are responsible for information gathering and for generating options to provide solutions.

The lawyers and other professionals are trained to guide and assist the clients to engage in interest based negotiation to generate options that are future focused and to prevent the process from becoming weighed down by issues of blame and the purely legal “rights” of each party.

The process in outline is as follows:-

•  Each client is represented by their respective lawyer throughout the process.
•  The lawyers stand in the role of “ally” to their client and seek to advance their interest.
• Both lawyers help the client and the other party work as a team to:
  • find and focus on your common interests;
  • understand each other’s concerns;
  • exchange information;
  • explore a wide range of possible choices; and,
  • reach solutions acceptable to both of them.

How is collaborative law different?

• Both lawyers and clients sign a contract at the start of the process which provides that all four parties to the contract will not go to Court or use threats of Court to solve the dispute.
• If the collaborative process fails, both lawyers and their law firms must withdraw from acting for their respective clients.
• The collaborative process is conducted on a different basis to the traditional positional bargaining approach that lawyers adopt – it is based on both clients and lawyers adopting interest based negotiation techniques.
• Negotiations are carried out almost entirely in four-way meetings attended by both lawyers and both clients.
• In the collaborative process both clients will:
  • treat each other with respect;
  • listen to each other’s perspectives, interests and concerns;
  • make full and frank disclosure of all material matters;
  • engage in good faith negotiations;
  • explore all possible choices;
  • let go of the past in order to focus on the future.

Is the collaborative process the right choice?

Collaborative practice is an alternative dispute resolution process that has many advantages.

• Both clients have skilled legal advisers at every stage of the process.  Both lawyers understand how to reach creative settlements.  The client is never “on his/her own”; the lawyer is at the client’s side, advising and assisting the client to achieve goals by mutual participation in the process and to achieve agreement.
• Both clients and their lawyers agree in advance to work only toward a settlement acceptable to both clients.  Litigation can never be threatened.  Neither party will be permitted to “play games” or take unfair or improper advantage of each other or to misuse the process.
• The lawyers share with their clients a financial incentive to make the collaborative process work.  The lawyers have not succeeded unless they help you create a mutually acceptable solution.  As with all good faith negotiation, some compromise is required from each side.  An outcome that both parties are satisfied with notwithstanding that they have compromised is a “win/win” result.

• The lawyers are “out of a job” if the process breaks down.  Neither lawyer (nor any member of their firm) can go on to represent the client if the collaborative process fails.
• The lawyers are concerned about the process as well as the outcome.
• Clients and lawyers work together as the members of a settlement team, rather than working against each other as “opposing parties”.

What is the process?

All four-way meetings in the collaborative process always follow the same steps:

1. Identify what is important to each client (interests);
2. Identify what questions the clients need to answer;
3. Gather information;
4. Create the maximum number of choices;
5. Evaluate options and modify and refine them;
6. Negotiate to an acceptable agreement; and,
7. Closure.

The Collaborative process will not be suitable to every client or for every matter.  It is simply another tool available in ADR.  One significant advantage is that it allows the parties to generate options for the solution of issues between them that would not be available through the court process.  Further, the clients choose the outcome in a process where they have control.