By Dr Brett R. Degoldi MAPS, Consultant barrister and solicitor
Collaborative separation and divorce (also called collaborative family law, or collaborative practice) is a new approach to resolving family law disputes out of court. The collaborative process is about cooperation, not confrontation, in resolving family law disputes and aims to protect the best interests of both clients, and also children.
Although collaborative separation and divorce has been practised in the USA and Canada for about 15 years, it is relatively new in Australia. As in North America, the development of collaborative separation and divorce in Australia is a practitioner-led initiative. In mid-2006 the Federal Attorney-General launched collaborative practice groups, comprising lawyers and psychologists, in Queensland, Canberra, New South Wales, Victoria and Western Australia.
Collaborative separation and divorce involves an interdisciplinary team approach, with collaborative family lawyers and collaborative family dispute counsellors working together to help clients deal with this very stressful and challenging time of life.
Collaborative family lawyers are legal practitioners who are trained in the collaborative process. Each client employs a collaborative family lawyer to advise them individually and to provide independent legal advice. Collaborative family lawyers use non-adversarial problem-solving skills to assist clients to resolve all issues in dispute. The collaborative family lawyers prepare the necessary legal documents to complete the process.
Collaborative family dispute counsellors are psychologists and counsellors who have expertise in family dynamics and issues pertaining to separation and divorce and who are also trained in the collaborative process. Collaborative family dispute counsellors
provide emotional support, teach communication skills, discuss shared parenting, and help ensure that feelings, needs, and concerns are understood and respected during the dispute settlement process.
In all cases, each client will be represented by a collaborative family lawyer. In practice, in some local jurisdictions family dispute counsellors may be used only on an as-needed basis. Given the nature of the separation and divorce process, it is suggested that psychologists and lawyers should typically work together as a team wherever possible (see also Cameron, 2004). The collaborative team works together to resolve all issues in dispute, whether that relates to property settlement, parenting issues, or support.¹ Where appropriate, other professionals (e.g., family mediators, child specialists, financial advisors) who are also trained in the collaborative process may work together with the team.
¹The collaborative process can also be used in assisting clients to resolve civil law disputes. Most attention has focused on family disputes because this is the area in which collaborative process has been most applied from its inception.
To protect the key principles during the collaborative process, each client signs a ‘Participation Agreement’ with the collaborative practitioners (lawyers and family dispute counsellors). The elements of the Participation Agreement are that clients agree:
Collaborative practitioners conduct meetings with their clients individually, and also use four-way meetings (that is, between both clients and both lawyers; or between both clients and both family dispute counsellors) to work towards a settlement.²
These four-way meetings take place out of court, usually in the offices of one of the collaborative practitioners. The process relies on all of the participants (clients and practitioners) understanding that this particular family dispute will be resolved using the collaborative principles and outside of court.
During the meetings, clients adopt the framework of collaborative negotiation and focus on the interests and outcomes that they wish to achieve for the mutual benefit of both, rather than locking into positions and threats. The separating parents/spouses and collaborative practitioners work as a team, rather than as ‘the opposition’.
In the event that their matter does not settle by collaborative negotiations alone, and either client files an application to the court, the collaborative practitioners (lawyers and family dispute counsellors) must withdraw from the case. If the parties wish to be represented in future court cases then they must employ new lawyers. The experience in overseas jurisdictions has been that withdrawal rarely occurs in practice because most disputes dealt with collaboratively reach agreement.
For far too long the litigious and adversarial nature of the family law system has been a destructive force on families in dispute. Collaborative separation and divorce is one of an increasing number of methods of resolving family law disputes without recourse to the courts. The early results from North America are encouraging and suggest a significant number of disputes can be resolved using this method of collaborative divorce, without much of the bitterness and entrenched conflict that results from litigation and court process (Webb & Ousky, 2007).
Whilst collaborative separation and divorce is a new tool that can be offered to clients as an alternative to litigation, it should be offered alongside other forms of appropriate family dispute resolution methods, such as mediation, arbitration, and judicial determination as the case requires.
The author can be contacted on firstname.lastname@example.org
Cameron, N.J. (2004). Collaborative Practice: Deepening the Dialogue. Vancouver BC: Continuing Legal Education Society of British Columbia.
Webb, S.G., & Ousky, R.D. (2007). The Collaborative Way to Divorce: The Revolutionary Method That Results in Less Stress, Lower Costs, and Happier Kids – Without Going to Court. New York: Penguin Books.