Is the future of law collaborative?
Collaborative family law practices have experienced a surge in popularity over the past decade as couples are increasingly looking for less adversarial methods to approach separation. Collaborative law differs from other forms of alternative dispute resolution because the parties commit to the collaborative process by taking the alternative – litigation – off the table. Instead, it is up to the parties and their respective lawyers to work together in “four-way meetings”, sometimes together with a collaborative law coach, to resolve the issues in dispute. Prior to entering into a collaborative law procedure, parties and their representatives must sign a contract agreeing to not take the matter to court, which promotes a greater exchange of information. If the parties cannot reach an agreement however, their collaborative lawyers must not represent them in court.
The proven success of collaborative law in helping parties reach mutually beneficial arrangements, reduce legal fees and avoid lengthy court proceedings has incited wider discussion around whether collaborative law processes could be applied to legal disputes in other civil law areas, such as employment law or commercial law disputes. The concept of collaborative law practice first emerged in the United States in the 1980s and was brought to Australia in 2005 by Justice Robert Benjamin of the Family Court of Australia after attending a US convention. Collaborative law reimagines the role of lawyers in resolving disputes between parties by challenging the traditional, ‘rights-based’ adversarial method of litigation into a more problem-solving exercise that addresses the needs of both parties. In a Sydney Morning Herald article published in April 2021 Sue Abrams, Vice-President of the Australian Association of Collaborative Professionals, acknowledged that, ‘more than not, people don’t want to stab each other in the eye, they want a civil resolution’.
The success of collaborative law is largely dependent on the parties’ voluntary and active commitment to reach a resolution that caters to their respective interests. Other than circumstances where it is clearly inappropriate, such as circumstances of domestic and family violence or abuse, it’s possible that collaborative law could be the future of mainstream dispute resolution in family law. It’s been suggested to be most effective in situations where the parties express an interest in wanting to preserve their relationship for ongoing purposes, which could hypothetically apply to many areas of the law, including commercial matters involving disputes between companies and their investors, or suppliers and their customers. The main challenge in persuading clients to opt for collaborative law is that they need to be committed to the non-adversarial nature of the process, and be open to the negotiations that meet the other party’s needs just as much as their own. While we are yet to see collaborative law adopted in Australia outside family law, it may be a growing space for those navigating other types of relationship breakdowns who are looking for a less costly, quicker, interests-based resolution.
If you’d like to learn more about collaborative law from Australian industry professionals, listen to Hearsay’s Episode 17 with Shelby Timmins from Divorce Done Differently, and Leona Bennett from Southern Waters Legal.