Frequently Asked QuestionsEverything you need to know about the Collaborative Practice approach
We understand you’ll have some questions, we’ve done our best to answer them here.
What does Collaborative Practice involve?
- Each party retains a Lawyer to advise them throughout the process;
- Experts from the financial and mental health communities may be involved in the process as experts or consultants;
- At the commencement of the case a team involving Collaborative Lawyers, Mental Health Professionals, Coaches, Child Specialists and Financial Specialists where applicable may be established;
- The parties and the relevant professionals sign a Collaborative Agreement setting out the ground rules for the process and agreeing that if the matter is not resolved through the Collaborative Process both Lawyers and other Collaborative
- Professionals are disqualified from representing either client in those proceedings;
- The process is underpinned by an understanding that the parties/the lawyers and other professionals involved act in good faith, are open and honest in their dealings with each other and conduct themselves in a respectful way;
- The majority of the negotiations take place at face to face meeting between the parties and the Collaborative Professionals. Correspondence between lawyers is kept to a minimum. Being present throughout the negotiations enables the parties to retain control and reduces the scope for misunderstanding.
- Once settlement is reached the lawyers will draw up the appropriate documentation to formalize that Agreement.
What is the difference between Collaborative Practice and Mediation?
In Collaborative Practice you have your lawyer with you throughout the four-way meeting to advise you and support you throughout the negotiation process. Your partner’s lawyer is also present. Mediation involves a neutral third party who facilitates the discussion between you and your partner. The mediator does not give legal advice.
Is the process confidential?
All professionals and parties involved in the Collaborative process are bound by the professional conduct rules of their relevant professional organizations.
The Collaborative process is privileged and conducted on a without prejudice basis and cannot be used in Court.
If the Collaborative process fails neither party may use any of the information or documentation generated during the Collaborative process.
What happens if one of the parties doesn't make full and frank financial disclosure?
If this was to happen, as of course it does in mediation or in the conventional legal process, under the terms of the Collaborative Agreement the lawyer must withdraw from acting for the client if the client has withheld or misrepresented information intentionally or is participating in the process in bad faith. If after a settlement as been negotiated through the Collaborative process it is discovered that a party has failed to disclose relevant information then Collaborative Practice is no different from any other negotiated settlement. If the outcome of that settlement would have been different had the information been available either party may seek to overturn the Agreement even after it has been approved by the Court.
Why can't we go to court?
It is a fundamental component of Collaborative Practice that the parties together with their lawyers and other Collaborative professionals agree not to go to Court and agree not to used the threat of going to Court as a means of coercing the other party to agree to or accept a proposal. This assists the negotiations to be conducted in good faith and to openly and honestly consider the interests of the parties.
By agreeing at the outset not to go to Court the parties and the lawyers are encouraged to reach creative settlement having regard to the legal position, but having at the forefront their specific interests and concerns.
The Collaborative Agreement requires that the lawyers and the Collaborative Professionals are disqualified from acting for the parties if the Collaboration fails. This ensures all parties including the lawyers are focused on achieving the settlement.
Is my case suitable for Collaborative Practice?
Collaborative Practice is the preferred method of resolving family relationship disputes. There may be factors that suggest that a matter be screened out of Collaborative Practice and these will be addressed by the lawyers and other professionals before entering into a Collaborative Agreement.
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