Collaborative Practice Training

The Law Society of South Australia is conducting both an Interest-Based Negotiation Workshop presented by Tania Sourdin and a Collaborative Law Workshop presented by Catherine Gale and Tania Sourdin from Thursday 15 April to Saturday 17 April 2010
This Interest-Based Negotiation Workshop has been developed to focus on negotiating legal, personal and professional disputes. The workshop will provide:
• A model for preparation building on the Harvard 7 Elements approach
• A review of communication skills and essential approaches in constructive negotiation
• Strategies and approaches to apply in complex and more simple negotiations
It builds on materials developed by international theorists and practitioners particularly in relation to identification and management of underlying interests.
Further issues, such as conflict escalation, competitive versus cooperative approaches, and dealing with ‘difficult people’ also will be covered.
Attendees will explore negotiation as an adjunct to litigation and alternative dispute resolution processes, in contract formation and within organisations.
With an emphasis on practical skills, participants are given the opportunity to practice the theory they’ve learnt by participating in a range of negotiation scenarios.
Negotiators are provided with feedback on their style and overall performance and can focus on the strategies and tactics used in negotiation.
In the Collaborative Law Workshop the issues covered will include:
♦ The Collaborative Approach
♦ The Paradigm Shift
♦ The Collaboration Contract
♦ Advocacy Issues
♦ Working with Other Professionals
♦ Starting a Collaborative Practice

I recommend anybody interested in practicing as a collaborative practitioner get trained using the training being put on by the Law Society. It is impossible to practice collaboratively without proper skills based training.

Multidisciplinary Collaborative Practice

I am pleased to report that Dr Amanda Shea Hart, child and family specialist and trained collaborative practitioner has commenced Adelaide's first multidisciplinary collaborative case with me and Bev Clark. Pauline Tesler and Linda Solomon along with other experienced collaborative practitioners have developed a multidisciplinary model of collaborative practice which has been used by many collaborative practitioners to deliver a model of collaborative practice that is an advance on the basic four way model involving two clients and their respective collaborative lawyers. In this multidisciplinary model, collaborative lawyers are the first point of contact for parties to a dispute but independent experts may be engaged at any time thereafter. For example, the parties may require advice from a property valuer, child psychologist, mediator or counsellor and they agree to retain these experts at the commencement of the collaborative process. The parties may adopt a multidisciplinary team approach which may involve a number of experts for the duration of the collaborative process or as and when required throughout the process. Known as a collaborative team, this group of experts provides advice which may relate to legal, psychological, emotional and/or financial issues. Other multidisciplinary models can involve the parties in first seeking advice from an accountant, family therapist and/or other expert who is familiar with the process. A family specialist may take on the role of collaborative coach, providing counselling services as well as assisting the parties to appoint collaborative lawyers and other independent experts whose advice may be necessary to resolve their dispute. Some of the four-way meetings may occur only between the lawyers and the parties, and these meetings will primarily involve legal issues. Other meetings will involve the coaches and parties and will focus on any psychological, relationship or communication problems that the parties are experiencing. Each member of the collaborative team will limit their advice and support to the particular issues in which they have expertise. As with legal professionals, all members of the team withdraw from the matter if the collaboration fails and the matter proceeds to court.

Adelaide Practice Group

Adelaide has a small but active collaborative practice group meeting monthly with the support of the Law Society of South Australia. The practice group has a strategic planning committee which is developing a strategic plan for approval by the Group.
The Group has mission of educating members and promoting the use of collaborative practice.
If you want to engage a good collaborative practitioner a good place to start is to ask them if they are actively involved in their local practice group. You cannot be a collaborative practitioner without being part of an active practice group.

The Time For Collaboration Has Come.

Collaborative practice is a way of handling disputes that uses an interest-based negotiation model. It is a non-adversarial dispute resolution process facilitated by lawyers, and where the interdisciplinary team approach is used child and family specialist assist the clients and the lawyers, to resolve the dispute in a supportive environment that addresses the multilayered facets of the dispute with the the objective of achieving an ethical and enduring settlement for clients.

Lawyers throughout Australia with the encouragement of the Commonwealth Attorney General and the Law Council have undertaken collaborative law training. The majority of practitioners who have undergone training are family law practitioners but the process lends itself to all areas of practice where dispute resolution is sought.

Collaborative law is different from mediation in that the clients their lawyers and other specailist team members work together in joint meetings exploring the dispute and its resolution whilst mediation relies upon a neutral third party to facilitate dispute resolution. Practitioners who have engaged in the collaborative approach often comment upon the liberating effect of working with both the parties jointly engaged experts and the other party’s lawyer in good faith and in open and honest dealings working towards the solution of the problem that meets the needs of all parties. In collaborative practice it is the parties who make the decisions and not their lawyers or the court. The parties and the lawyers at the commencement of the collaborative process enter into an agreement that provides the parties cannot use the lawyers with whom they have engaged in the collaborative process to take the matter to court. The effect of this agreement is that during the process parties are precluded from threatening to resort to litigation.

Unlike litigation, the process is directed solely towards problem solving rather than building a case to present to a court to defeat the other party. In litigation the focus is often to pursue perceived rights of one party with little or no consideration of the rights of the other party and the long term effects on each party. Collaborative lawyers often work with collaboratively trained mental health professionals, coaches, child specialists and financial specialists. In collaborative practice when harm is seen the lawyers and where applicable mental health professionals assist the parties to be reflexive and remove the cause of harm. All disputes are stressful but the emotional costs of family law disputes are legend. The benefit of having access to mental health professionals to help parties grapple with the emotional trauma of dispute is obvious. The meetings between parties and their lawyers are used to identify the priorities, goals, needs and interests of the parties. The conduct of the meetings require open and respectful communication, full disclosure, adjournment or the opportunity to break and seek professional help without fear of the other party taking procedural advantage.

The collaborative model promotes the preservation of relationships in spite of a conflict. Collaborative dispute resolution minimises damage to relationships and increases the likelihood of appropriate dispute resolution skills being applied to future issues and disputes between the parties. Besides Family Law this approach is equally important in estate matters, employment issues, partnership and business disputes, franchisor/franchisee matters and all other matters where it is important to the parties to maintain a relationship into the future.

Parties who have engaged in the collaborative process have expressed the view that they appreciate the settlement orientated, creative, private, respectful process it provides without needing to sacrifice the benefits of having their lawyer at their side. Unlike many mediations, parties who adopt the collaborative process will not be left without the benefit of legal advice. Mediators must tell parties they cannot provide legal advice and parties may feel compelled to reach agreement without the benefit of legal advice.

Lawyers who have become disillusioned with the adversarial practice of law can continue to practice law as helping professionals with the knowledge that they will never be called upon to represent their client against the other party in court proceedings. Collaborative law is not just a synonym for friendly negotiations. The inability to resolve an impasse in settlement negotiations by the issue of proceedings encourages collaborative lawyers to work with the parties to find a way through any impasse. Both lawyers and parties are motivated to remain at the negotiating table to resolve the dispute.

In the adversarial model much effort is devoted to painting the position of parties as “good” and “evil”. Parties seek to avoid the disclosure of information they perceive as damaging and much effort is spent searching for information that may harm or damage the other party. Parties make ambit claims expecting that to reach settlement at the court door they will need to reduce the magnitude of that claim. Parties can begin to believe they are entitled to the ambit claims that have been made on their behalf and become unhappy when their expectations are not met.

In the collaborative model the lawyer listens to the client's entire narrative not for the purpose of finding material to harm the other party but rather to help the parties discover common interests and goals, and to take advantage of differing perspectives. In a traditional adversarial matter, the parameters of orders are dictated by the law, whereas in a collaborative outcome the parties can be creative in structuring an agreement that works for them but may not have been something a court would order. All matters which parties think are important may not be relevant or admissible in a court matter, whereas in a collaborative model, their issues can all be explored, leaving them feeling that they have been heard and their issues aired. Clients take part in the negotiating process with their lawyers emphasising the importance of good faith bargaining and the management of conflicts and strong emotions so that clients are empowered to participate actively and effectively in direct negotiations. Also extended discussions, information sharing, options development, and negotiations take place in face-to-face meetings with the parties.

In a collaborative matter the role of the lawyer shifts from litigator to guide and facilitator of negotiations. Instead of measuring success by the size of the outcome on one's own side of the table success is judged by the degree to which both collaborative lawyers succeed in working effectively with both parties in interest based negotiations, in good faith and in a respectful manner, at an appropriate pace, seeking a mutually beneficial and acceptable outcome. The process provides the parties maximum involvement, control and flexibility over their outcome.

Collaborative practice allows lawyers and their clients to search for a resolution that advances the collective good. Collaborative lawyers can justifiably feel proud and satisfied that their efforts at collaborative conflict resolution are an important socially valuable service.