Collaborative practice: the process of choice when neither litigation nor mediation quite fit the bill.
It is a dispute resolution process in which the clients and their lawyers enter into a contract (Participation Agreement) to constructively negotiate an outcome without resorting to litigation.
How does it work?
The Participation Agreement provides that the lawyers must withdraw if an application to determine the dispute is made to a Court or Tribunal. This provision effectively focuses all the participants in the negotiation to work towards reaching a solution. It removes the temptation for either the clients or their lawyers to posture and/or commence litigation, whilst strengthening the commitment for the clients and their lawyers to work together to achieve the clients’ settlement goals.
The clients, their professional allies and neutral experts, when required, must engage in open, honest and transparent integrated decision making during structured meetings. All of the negotiations are conducted in these meetings, which are typically between four and seven in number.
The agenda for each meeting is pre-determined by the clients and their lawyers. Between meetings the clients, their lawyers and other required professionals work co-operatively to ensure that all of the information relevant to each agenda is available in advance of the meetings. The lawyers also work with their respective clients to prepare them for each meeting, which they debrief afterwards. Similarly, the lawyers consult with each other on procedural matters before each meeting and debrief on procedural issues after each meeting.
Why is it a good option?
The benefits to the clients include their taking responsibility for their issues and its resolution. They retain control of the content of the matter, including the pace and cost of the process. Negotiations are private and confidential, and clients are assisted in reaching an agreement that, so far as possible, meets their goals and priorities, including functioning in future family, commercial or workplace relationships.
The clients personally understand all of the implications of the matter and the options for a workable solution, whilst being able to put the legal issues into context. They may also gain insight and skills to conduct future negotiations themselves.
The benefits to the professionals include the collegial nature of the work, a more satisfying relationship with clients, a more manageable work schedule and improved cash flow. As most of the work is done during the meetings, clients know and understand what work their respective lawyers did for the time they are billed.
How to find a collaborative practitioner
Collaborative lawyers are members of local practice groups through which they participate in ongoing professional development. Collaborative practitioners throughout New South Wales can be located through the website of Collaborative Professionals (NSW) Inc.