COLLABORATIVE LAW is beginning to take off in Australia with the backing of the Family Law Council, federal Attorney-General Philip Ruddock, and the Chief Justice of the Family Court Diana Bryant.
Support for the relatively new method of dispute resolution was on display recently as five state-based collaborative lawyers organisations launched websites at a function held at the Family Court.
Patrick Parkinson, Chairman of the Family Law Council is amazed at the interest collaborative law has generated.
“What has really pleased me is how quickly it has developed and how much interest there is amongst professionals already,” he said.
It’s little wonder family law practitioners have been quick to embrace collaborative law — it has been tried and tested in the US and Canada for more than 15 years and is regarded as a very successful form of dispute resolution allowing separating couples to resolve conflicts outside the court system. Couples are required to take an active role in negotiating creative and practical solutions, while putting the needs of any children first.
What makes collaborative law unique is that lawyers are motivated to make the process work by signing a contract at the start of the dispute, promising their clients to settle the matter without going to court. Should discussions break down and the divorce proceeds to court, the clients must sack their collaborative solicitors and hire new lawyers from competing firms.
John Pollard, president of Collaborative Professionals (NSW) and special counsel at Watts McCray, said it’s important lawyers sign this contract, often referred to as a participation agreement, to ensure the process works.
“There are some people who might be reluctant to sign the agreement on the basis that if it fails they have to be sacked and they can feel bad about that with the client having invested a lot in a particular lawyer. So there will probably be initial reluctance from people to sign. But we are told from the USA that it’s essential because that’s what makes sure the clients are reasonable and try to work out a solution that is going to satisfy their needs rather than being guided by their lawyers,” he said.
Pollard has spent 40 years as a family lawyer and thinks the emergence of collaborative law in Australia will revolutionise the way many family law disputes are settled for the better.
“It’s not so much about looking at legal rights, but rather the needs of the parties. If the parties are just looking at their legal rights then the process is more likely to fail. Parties have to use interest-based negotiation and not be threatening to take the matter to court. It’s basically trying to change the whole culture,” Pollard said.
Professional associations of collaborative lawyers now exist in NSW, Victoria, Queensland, Western Australia and the Australian Capital Territory.
Presently lawyers are not required to meet any formal requirements to practise collaborative law in Australia, but most collaborative practice groups will ask their members to attend a two-day training program and commit to ongoing training to build on their existing skills.
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