Sarah Keenan, David List and Stephen Winspear
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Transcript of Sarah Keenan, David List and Stephen Winspear
History of Collaborative Practice
Commenced in USA 25 years ago
Stu Webb – veteran family lawyer – war of the roses weary
Methods of Dispute Resolution
◦Murder◦Rule of law◦1st Family Law matter
…Today’s Court system
History Spread exponentially
around the world Initially just lawyers Initially just family law Evolved into interdisciplinary
teams Different models in different
locations
The System
Rigid and positionalLong delays in CourtHigh costs of litigationUncertainty of outcomesStress of adversarial modelDamage to familiesRecidivism
Preservation of relationship
Collaboration commenced in family law area
Equally useful where relationships are important eg. Estate disputes, Partnership disputes, Lessor/Lessee
Relationship to MediationOverlap with MediationIf parties screened out of Mediation,
or Mediation fails, CP preferable alternative to Court!
If Collaboration fails, Mediator can assist in the process – preferable to Court!
What is Collaborative Practice?A non adversarial processFocus on problem solving, interest
and value based negotiationA process specifically designed to
preserve relationshipsA dignified and civilised
approach to resolving issues that arise as a result of the breakdown of a relationship
Each party needs to engage a trained Collaborative Solicitor
Collaborative Practitioners are 100% committed to settlement – withdraw if the parties decide to go to Court
Any issues important to the parties are dealt with – not just those that a Court could consider
Creative options explored – not limited to what a Court can order
Features of Collaborative Practice
Gathering and sharing information – full disclosure
Joint engagement of teamNo unilateral action – all
steps agreed by all parties in advance
All negotiations take place in joint meetings – no correspondence
Features of Collaborative Practice
Parties take into account the goals and interests of all parties, not just their own
Aim for durable and VIABLE outcome
No party can take advantage of any mistake or miscalculation of the other
Emotions and pacing are relevant
Features of Collaborative Practice
Unmanaged ConflictModeration
replaced by extremism
Antagonism replaces disagreement
Original concerns replaced with preoccupation with latest insult 12
Emotional Process of Divorce
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Emotional Process of Divorce
The old dance practiced for years needs to be replaced with a new dance
Increased likelihood of preservation of relationships (personal, business, family)
Minimisation of hostility and conflict
Clients control the process and own the outcomes
Faster resolution
Advantages of Collaborative Practice
Maximum flexibility Creative solutions Maximise privacyCost savingsPotential for improvement
of communication, negotiation and problem solving skills - may assist or minimise future conflict
Advantages of Collaborative Practice
The Collaborative Practice Process – How does it work?
Determine suitability of client/matterPrepare clients for joint meetingsAssemble a multidisciplinary teamAgree on agenda and process for the first joint
meetingAll substantive matters discussed at joint
meetingsProfessionals brief and debrief with each other
How Does it Work: Screening• Serious mental illness• Drugs and alcohol• Domestic violence• Completely unrealistic/inflexible• Bully/victim• Rage and bitterness
The Collaborative Team Lawyers, accountants,
financial advisers, child specialists, mental health specialists, conflict coaches
All trained to participate in the Collaborative process - parties/resolution focused
Choreography 2. First team briefing3. Agenda4. First 5-way meeting:
settingcontractimmediate issueshomework
Choreography (2)5. De-Briefs6. Minutes7. Agenda8. Preparation with client for next meeting:
optionsissues
The Collaborative Lawyer:Represents client – not client’s gladiatorHelps client clarify and communicate effectively
about goals, interests, hopes, worries, priorities and values
Advises client about process Puts the law in perspectiveHelps client find creative, comprehensive
and mutually acceptable solutions to problemsPrepares agenda, minutes etc.Prepares legal documents required (settlement
deeds etc.)
• Assess needs and issues
• Assess and facilitate pacing
• Facilitate team communication
• Develop strategies for managing emotion
• Mediator• Children's needs • Support clients• Chair joint meetings
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The Mental Health ProfessionalManage the emotional landscape and provide support
The Financial Neutral
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• Gather information • Prepare asset register• Educate one or both parties around
finances • Assist in creative option generation • Reality test options being considered • Future projection/budgets
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• Neutral source of advice and info• Financial decisions made with open eyes…• Provide time and cost efficiencies through
specialisation• Leverage existing knowledge and tools
• Technical support – income and capital gains tax, establishing capital values, long term asset values, budgeting, structuring
• Painting the Picture – explanatory illustrations, modelling tools, resource libraries
• Network of related professionals to call upon
Financial Neutral
Advantages of team approach Recognition that separation is a traumatic
process that is bigger than a legal issueRecognition that parties benefit from
assistance of other professionalsNo one professional can best address all
the legal, social, emotional and financial concerns
Better to have all professionals on the same page rather than working against each other
The Child ExpertSeparately interviews the child(ren)Brings the child(ren)’s voice to
CollaborationHelps parents to focus on the best
interests of the child(ren)Collaborates with the rest of the
team
Advantage of team approach for clients
One stop shop Cheaper to have appropriate professionals
using with their area of expertise Feel fully supported in process Communication and emotions are integrated New skills learned Teamwork only improves with age! Often can hear news or perspectives from
neutral that would be hard to hear from anyone else
Final Comment… whether we like it or not, every encounter that our
clients have with us and with the courts operates in the service of healing or against it; little or nothing that we do with clients enduring so stressful a life passage can be seen as therapeutically neutral. We can choose to ignore the scarring impact of our work as litigating……..lawyers, but that does not make the damage we do less real; it merely makes us wilfully ignorant. (Pauline Tesler)
Thank you!
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