By Anita Owens
Collaborative practice involves working as a team of professionals to assist clients to settle disputes, without going to Court.
Traditionally the process has been adopted in the area of Family Law, however more recently it has been used in Estate Planning and Estate Disputes, Franchising and Shareholder disputes and has the ability to be far more broadly applied.
Collaborative practice originated from an idea of a family law lawyer in Minnesota, Mr Stu Webb. In February 1990, Webb wrote to Justice Keith of the Minnesota Supreme Court setting out his idea of moving away from a litigation practice and establishing a settlement practice. From that idea, the model of collaborative practice was born.
Each party is represented by their solicitor and additional team members are introduced to the process as required. Team members can include forensic accountants, financial planners (finance neutrals), psychologists, child specialists or other professionals that may be deemed necessary. A coach is often also engaged to oversee the entire process and to keep the parties on track to achieve an outcome that is satisfactory to each party. All team members are collaboratively trained.
Benefits of collaborative practice
The collaborative process will not suit all clients or all practitioners, however for those clients that do choose it, the success rate in achieving a settlement is high and the outcomes are often more creative and result in a “win / win” for the clients rather than a “win / lose”.
The benefits of the collaborative process in family law include:
- minimising conflict;
- better control over the process;
- maintaining a high level of dignity, respect and privacy;
- avoiding Court proceedings;
- children’s needs given priority;
- tailored solutions rather than one size fits all;
- potentially a better long-term relationship with an ex-partner;
- a fairer settlement which incorporates each partner’s needs, interests and objectives; and
- an alternative to litigation without the associated costs, delays and emotional issues.
In the event a settlement is unable to be reached and the matter proceeds to Court, the participation agreement entered into at the commencement of the process provides that the solicitors must withdraw and the parties obtain new legal representation.
Role of Financial Neutral
A collaboratively trained accountant or financial planner can be introduced to the team to assist to resolve the financial matters between the parties, including:
- To gather relevant financial information
- Valuing any businesses or entities;
- Identifying the property pool (together with tax issues);
- Assisting in identifying financial goals;
- Development of settlement pathways;
- Reality testing.
In addition, and importantly, the financial neutral assists in educating (where required) the parties in relation to the financial matters. In this regard, the parties are making decisions regarding their future on the financial information presented. How do they make appropriate decisions if they do not understand the financial information and how it relates to them?
Collaborative process vs traditional process
Advantages of the collaborative process over the traditional adversarial process include:
- Clients made the decisions, not Judges;
- Outcome focused, not conflict focused;
- Parties work together with the assistance of the Collaborative team rather than against each other;
- Big focus on best client outcomes within the clients’ identified goals;
- The parties’ accountants and advisors can have ongoing involvement in supporting their clients;
- Faster resolution.
Overall, the collaborative process is designed for the parties to own the process and to reach a settlement whereby each party achieves their objective as far as possible with the guidance of the members of a bespoke team. Trust and respect between all of the members of the team are paramount in achieving a resolution.
 Queensland Association of Collaborative Practitioners website – www.qacp.org.au
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