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Collaboration the key for good ADR

Collaboration the key for good ADR

COLLABORATIVE LAW looks set to become the preferred method of alternative dispute resolution for civil and family law matters in Australia, with application to the commercial sector a definite…

COLLABORATIVE LAW looks set to become the preferred method of alternative dispute resolution for civil and family law matters in Australia, with application to the commercial sector a definite possibility.

Although collaborative law is most widely used in family law, to resolve estate planning, divorce and children’s matters, it is being heralded as the best method by which corporations with a strong working history can maintain their association following disputes. Another suitable arena for the process is environmental law, which typically involves lawyers sitting down with councils and government authorities to resolve complicated planning disputes.

John Pollard, new president of the Collaborative Professionals (NSW) Inc group and special counsel at Watts McCray, became interested in collaborative law because it offers parties the ability to settle their disputes in a decent, disciplined way. He said the whole aim is to preserve relationships, both business and personal, long after a dispute has been addressed.

“If they start filing applications in the court, that would normally destroy their relationship. There would be no trust in the future,” said Pollard. Instead, collaborative lawyers can be hired to settle the matter on the best terms for the parties involved, as experience in North America and Europe is already showing.

The inception of the New South Wales group, formed to provide ongoing education and training to practitioners and the public about the benefits of collaborative law, was celebrated with a Law Society of NSW dinner on 18 July.

On the night, federal Attorney-General Philip Ruddock praised the warm reception the process has received in family law over the past 12 months. “We want to change relationship breakdown from being seen as a legal and adversarial process, to one that’s primarily a relationship issue,” he said.

June McPhie, president of the Law Society, said the process was a positive step toward the minimisation of costs and preservation of future relationships between the parties involved.

“Disputes between family members or business partners can often end in the relationship turning sour. This causes great complication when the relationship must continue long after the dispute has occurred,” she said in a statement released by the Law Society.

The process itself is refreshingly simple to administer. Once lawyers have been suitably trained, they meet together with their clients on generally four to seven occasions, alternating offices and keeping minutes to be exchanged at the conclusion of each discussion.

If a deadlock arises, then mediators, ex-judges, senior barristers or technical experts may be brought in to resolve it, usually by brainstorming — a crucial component of collaborative law — to reveal all the available options and deduce where common ground lies between the parties.

“It empowers the parties to reach a mutually agreed settlement,” McPhie said. “Neither party should walk away feeling disgruntled with the final outcome.”

Each meeting is followed by a debriefing session — between the lawyers, and each lawyer and their client as well. This provides a good opportunity to gauge how comfortable the client is in relation to the process. If, for example, a party is being intimidated by the other side, the lawyer can direct the client to assertiveness sessions with a counsellor before the next meeting is scheduled.

Collaborative Professionals (NSW) Inc, in conjunction with the University of Technology, Sydney (UTS), is encouraging lawyers to gain basic training in order to practise collaborative law. Forty-four lawyers were involved in a recent course, held over one weekend for six hours each day.

A further three day advanced course is offered to round off the educational experience. Pollard believes UTS views the course as “a very therapeutic kind of jurisprudence”. It’s all about “making lawyers see themselves as problem-solvers, rather than just going out there to do their client’s bidding,” he said.

Other universities, such as Monash, and those in Adelaide and Brisbane, are considering offering similar courses in collaborative law. The course is also open to non-legal professionals, including counsellors, psychiatrists, psychologists, financial advisors, valuers and accountants, so they can be relied upon for neutral, expert advice should a deadlock arise in the process.

Pollard anticipates collaborative law will improve the reputation of lawyers in wider society, an industry sometimes accused of being preoccupied with the billing of hourly rates.

“If lawyers see themselves as problem solvers, then they are going to have their profession enhanced … to preserve peace and tranquillity in the community rather than provoking all these arguments,” Pollard said.

He senses, after nearly 40 years in the profession, that lawyers themselves will welcome the opportunity to avoid slugging their clients with hefty legal bills after long, unsatisfying court proceedings. The general public too should “applaud their lawyers for behaving decently and being able to speak civilly to one another, rather than having to be at each other’s throats”.

Unlike other dispute resolution methods, clients are bound to sign an agreement with their lawyers before collaboration begins, specifying that if the matter progresses to court, they must hire new legal representation. All of the meetings are privileged; none of the minutes or agreements made can be relied upon unless they form part of a binding legal contract.

Collaborative law was created by Stuart Webb in the US in 1990, and has become widely used in Canada. It has since spread to Europe and the UK, before being introduced in NSW in 2002 by former Law Society president and present Family Court judge the Hon Justice Robert Benjamin.

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