What is collaborative family law and is it right for every family dispute?
Collaborative family law is a non-adversarial process where separating parties and their lawyers work together to resolve disputes without going to court. It encourages open communication, focuses on the interests of the family and children, and can involve independent experts where needed. However, it may not be suitable where there is family violence, significant conflict, substance abuse, mental illness, or major power imbalances. If the process fails, the parties must engage new lawyers before commencing court proceedings.
Collaborative practice in family law uses consensual legal practices rather than employing adversarial approaches. It is argued that collaborative law commits lawyers and clients to resolving disputes together by non-positional bargaining. It is called “collaborative” law because it brings the lawyers and clients altogether in a non-adversarial setting to negotiate the issues. This is very different to adversarial family law practice, where each lawyer communicates with their client separately and then advocates and bargains with the other lawyer in the absence of the clients.
A 2006 report from the Attorney General prepared by the Family Law Council identified the following advantages of using collaborative practice to resolve family disputes:
- It provides a formal structure in which positive child-focused communications are modelled by the advisers
- It provides legal advocacy support during collaboration
- It removes the immediate threat of litigation
- It encourages parties to develop a trusting alliance for their future parenting
- It directly involves the parties in negotiations based on interests and not positions
- It aims to achieve results that meet the needs of each of the parties and their children
- It minimises the time that lawyers must spend in correspondence with each other, and
- It utilises the expertise of independent experts including child specialists and financial advisers outside of an adversarial setting.
There are also, however, some distinct limitations to the collaborative law process. It is not suitable for use in the following situations:
- Where there are parties that feel extreme hostility toward each other;
- Where parties have poor communication skills;
- Where there is family violence, mental illness, extreme power imbalance or substance abuse
Even without these “contraindications” there may be inherent limitations to the process itself, such as:
- Parties cannot use the Rules of Court to ensure access to information and documents (known as “discovery”), or compliance with processes.
- Clients are required to engage new lawyers if the collaborative process does not result in settlement.
- If the negotiation process breaks down, collaborative practitioners may not be authorised to issue a certificate under section 60I(8) of the Family Law Act 1975, stating that the parties have attempted to settle their dispute – this certificate is a prerequisite to initiating court action.
- There is no authoritative decision-maker in the room.
- Lawyers are required to undergo training and change their thinking from a rights-based to an interest-based model.
- It can be difficult to convince the other party and/or their lawyer to participate.
How does collaborative practice differ from other forms of Family Dispute Resolution (FDR)?
Unlike FDR, in a collaborative practice setting, litigation is removed from the equation. Theoretically, once Court proceedings have been ruled out, the focus for all concerned is no longer about winning and losing. The focus shifts towards negotiating a mutually acceptable agreement for the family as a whole. Of course, the separating couple can elect to abandon the collaborative process and proceed to Court at any time, but the lawyers who represent the parties in the collaborative law process cannot. If parties do subsequently commence court proceedings, they must obtain a new family lawyer.