03 Oct Collaborative Practice: novelty or norm?
A version of this was first blogged on the Australian Dispute Resolution Research Network
Collaborative practice is experiencing a revival across Australia for family law disputes. This revival demonstrates maturity in its practice and its dispute management potential and poses questions about whether it can or should be the norm to resolve disputes, especially those affecting families.
In many Family Court registries there are delays of up to three years for cases to reach trial. This has prompted renewed interest in collaborative practice by family lawyers and others involved in family dispute resolution, who inform disputants that it can help them to ‘stay in control of your own decisions and out of court’. The Family Law Council reported on Collaborative Practice In Family Law in 2007 and further impetus was given to it when the Law Council of Australia released Collaborative Practice Guidelines for Lawyers in 2011.
Specialised training to become collaborative practice professionals is being widely conducted, and professional practice groups have been revitalised and formed locally and state-wide, with the launch of the Australian Association of Collaborative Professionals imminent. These developments represent a maturity among collaborative professionals, as well as reinvigorated confidence in the potential of collaborative processes to resolve family disputes productively, transparently and co-operatively. It has also led to the emergence of new models of collaborative practice which further indicate its maturity as a dispute management process, and which suggest promising shifts in legal practice.
Collaborative law emerged in Australia more than 10 years ago, following North American experiments in the 1990s to resolve post separation disputes through civilised, respectful non-adversarial, interest-based negotiation. In Australia the Law Council defines collaborative practice as ‘a process in which clients, with the support of a collaborative practitioner, identify interests and issues, then develop options, consider alternatives and make decisions about future actions and outcomes’. In Canada and the United States, it is claimed to have settlement rates of over 95 per cent and a straw poll from the Central Sydney Collaborative Forum indicates 85 per cent.
The distinctive feature of collaborative law is a contractual agreement between lawyers and clients to not litigate and to negotiate in good faith. Lawyers are engaged in a representational capacity and assist clients to understand the law and to be responsible for decision making. As legal academic Marilyn Scott observes, collaborative lawyers ‘need to be able to give sound legal advice’, but also ‘to have advanced skills in dispute analysis, negotiation preparation and strategising skills, excellent people skills and a sound understanding of conflict dynamics and conflict management.’ People may also choose to involve non-legal experts such as financial planners, child consultants and psychologists in the collaborative process.
Managing post separation disputes this way is currently termed ‘interdisciplinary collaborative practice’ to highlight the value of a range of professionals contributing to the management of a dispute and supporting parties to make informed consensual decisions. All the professionals involved in Australian interdisciplinary collaborative practice are required to participate in training and to register with a collaborative practice organisation to ensure a shared philosophical commitment to non-adversarialism, and to foster professional networks and standardise practice.
The role of an independent intervener or coach has also emerged as an important part of the current collaborative process. This has led to the development of five-way meetings (single coach, lawyers and parties) as a preferred model, at least among many Sydney collaborative family law professionals.
The coach generally assumes the role of an independent and impartial facilitator and steward of the process, assessing the dispute and parties for suitability, and assisting the lawyers and parties to make most efficient use of process and maximising their contribution to it. The coach frequently manages the process, including agenda setting and minuting, assists parties to prepare for the meetings and to communicate effectively. They may meet jointly or separately with parties between five-way meetings for various reasons, for example, to facilitate feedback from child consultants, foster parental alliance, clarify party goals, assist parties to develop strategies regulate their emotional state, and to assist the family to transition through the separation.
Coaches may be mental health professionals, but in Australia are also frequently accredited Family Dispute Resolution Practitioners, bringing mediation expertise and authority to issue section 60I certificates should agreement not be reached.
The growing prominence of coaches in collaborative practice is not an ‘an indictment on the ability of collaborative lawyers to perform the basic tasks of the collaborative process’, as Henry Kha suggests. On the contratry, it gives greater weight to Laurence Boulle and Rachael Field’s conclusion that collaborative practice constitutes a ‘more authentic alternative to adversarial justice’ with real promise of creative, client-centred, consensual outcomes in an integrative, multi-professional and flexible process.
Of course collaborative practice is not suitable or affordable for all disputes or disputants. It is claimed that the cost of collaborative practice is ‘generally less than the conventional adversarial path’ and parties have control over the pace and timing of the process. A separate intake assessment is required, but the Guidelines do not identify issues to be considered in evaluating appropriateness. Capacity to negotiate freely in a family context may be affected by violence, risks to safety to parties or children, mental or other health concerns and inequality of bargaining power.
The presence of legal advocates will minimise such risks and it was the presence of a range of professionals in the Coordinated Family Dispute Resolution (CFDR) pilots that made some victims of violence feel that the CFDR process was safe and fair. Perhaps a blending of the strengths of collaborative processes with those offered by CFDR might lead to an affordable, accessible and safe model of collaborative resolution of family disputes, especially for complex cases most often resulting in litigation with significant emotional and financial cost.
Because of the greater emphasis in collaborative practice on the values of ‘humanism, emotional expression and the maintenance of relationships’, some commentators argue that it is illustrative of a ‘new advocacy’ that challenges traditional assumptions of legal practice and reclaims for lawyers a role as facilitators of creative and constructive client-centred non-legal outcomes. If such shifts in legal practice are to deliver the promise of a more positive professional identity for lawyers and more humane legal system then, as Rachael Field, Laurence Boulle and other legal scholars have argued, we need to design legal education to prioritise appropriate dispute resolution expertise and practice.
Whilst it is unlikely in the short term to become the norm in resolving family legal disputes, because of cost barriers or inappropriateness, development of greater understanding of collaborative practice by law students may mean it would become normalised rather than novel. It may also be more likely to be applied in a broader range of contexts as suggested by the Law Council, including ‘commercial, community, workplace, environmental, construction, building, health and educational decision making.’