A PEOPLE FRIENDLY APPROACH TO DISPUTE SETTLEMENT
Are you separating?
Do you want to reach agreement about your children and property without going to Court?
Do you want legal advice and assistance without Court process?
What is Collaborative Law?
Collaborative Law is an emerging form of dispute resolution where people are asked to “put the fight to one side” in an attempt to come to a resolution of their dispute.
Collaborative Law uses an interest based negotiation model where clients and their Lawyers work together to resolve a dispute without going to Court. The aim is to reach a fair agreement while minimising costs, delays and distress.
Collaborative Family Law offers a fresh and dignified approach to resolving the issues that arise out of relationship breakdown. In a collaborative process the clients and their Lawyers agree to work together to find a fair solution to whatever financial or child related issues need to be addressed without involving the Courts.
You may choose Collaborative Law if you want:-
- A fair outcome for everyone involved including any children;
- To avoid the financial and emotional costs of going to Court;
- To make your own decisions with the help of Lawyers and other experts;
- To control the process of making decisions;
- To maintain an agreeable relationship with others involved;
- To gain skills to manage any future disputes;
- To maintain your privacy and to keep your agreement confidential.
Collaborative Law is different from mediation or Family Dispute Resolution as:-
- You can have your Lawyer with you.
- Collaborative Lawyers will assist you to work out solutions as part of the team, looking at everyone’s needs, not as neutral third parties.
A collaborative approach allows for a greater degree of cooperation between a range of professionals involved in helping families. Clients involved in a collaborative process will have access to the skills of child specialists, counsellors, accountants and financial advisors who can bring their expertise to the process when necessary and allow the clients, with their Lawyers, to focus upon shaping a fair settlement.
Collaborative process offers separating couples an opportunity to work together to find a fair solution to the issues they face during a relationship breakdown, being a solution that is uniquely tailored to fit their life and their family. Separation is difficult for everyone but it can be managed in a constructive and dignified way without the intervention of the Courts.
How does Collaborative Law work?
Each client, their Lawyer and any professionals involved:-
- Signs an agreement to negotiate in good faith without going to Court or threatening going to Court.
- Attends a series of meetings to resolve the dispute.
- Discloses all information relevant to the dispute.
- Agrees to use joint experts, thus saving costs and time.
- Agrees that the Lawyers and other professionals will withdraw from acting for them if the collaborative process is not adhered to and that the Lawyers cannot represent clients in any subsequent related litigation.
Too often people are attempting to resolve disputes involving children and their property by only relying on counsellors or mediators for assistance. Unfortunately, all too often, clients are compromised because they do not have available to them during these discussions either legal advice by competent Family Law Specialists and/or Financial Advisors and Accountancy experts who can assist them in rearranging their financial affairs so as to maximise the benefit to both parties.
Further, not just any Lawyer has the skills to provide clients with the ability to participate in the Collaborative Law process. To engage in the process your Lawyer needs to be specifically trained and accredited in the Collaborative Law process.
The key element of Collaborative Law Practice is the written commitment by the parties and their Accredited Lawyers that neither party will seek a resolution of their disputed issues in the Courts during the collaborative process and if either party does so, their Solicitor must withdraw from any adversarial proceedings.
This commitment is viewed as being essential and promotes interest based, problem solving negotiations rather than negotiations that are position based that always have hanging over them a threat of litigation.
After deciding that Collaborative Family Law is appropriate in your case, you, your partner and your Lawyers will sign a Participation Agreement setting out the ground rules for the collaborative process.
The majority of negotiations between you and your partner will then take place at four way face to face meetings between you, your partner and respective Lawyers. It is during these meetings that the issues of importance to you and your partner are identified and discussed.
Also, where appropriate, you will be encouraged to draw on the skills of other specialist advisors such as Accountants to assist with financial and tax matters, Financial Planners, Valuers or Child Counsellors to discuss an issue that may have arisen in relation to the care of your children.
Once a settlement is reached, the Lawyers will draw up the Agreement which will usually be submitted to the Court for approval and made into a Consent Order that is binding on each of you.
The reason that Collaborative Law is successful is that:-
- The Lawyers that are involved have undergone special training and been Accredited to practice in Collaborative Law.
- The Lawyers involved are disqualified from acting for their client in Court should the process fail. This encourages all parties to try to achieve settlement without the threat of Court proceedings when things become tough.
- By agreeing at the start not to go to Court, you, your ex-partner, and your Lawyers are encouraged to work hard to reach settlement which has your family’s best interest at heart.
Is your case suitable for a Collaborative process?
Collaborative Family Law is not necessarily for everyone, but will be of interest if the following are important to you and your ex-partner.
- You want a dignified non-aggressive resolution of your issues.
- You have children and want to put their needs and interests at the forefront.
- You do not wish to incur costs and animosity generated by Court litigation.
- You want to retain control over decisions regarding your financial settlement and parenting arrangements, but also have the benefit of advice from experts.
- You would like the assistance of your Lawyer to help in negotiating face to face meetings.
Who can I see about getting a Collaborative Case started?
It is essential that both parties use Lawyers that have been trained in Collaborative Family Law.
Collaborative Law is new to Australia and you may not find Collaborative Lawyers in all areas.
You can find a Collaborative Lawyer at Collaborative Professionals New South Wales at www.collaborativeprofessionalsnsw.org.au/family/membership or contact the New South Wales Law Society to find a Collaborative Lawyer in your area.
There are numerous Lawyers in Sydney that are trained in Collaborative Law process.
Matthew Oakley is one of only two Lawyers in Central West New South Wales trained in the Collaborative process
If you think the Collaborative process may be an attractive way of resolving your dispute, then contact a Collaborative Lawyer near you.
Have a look at this video descibing the collaborative process.