Collaborative Practice – unique skillset or traditional lawyering?

Posted on 27/11/2016 by Associate Professor Becky Batagol

Student Guest Post by Ben Zocco

This post is the first in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University. Students were invited to write blog posts explaining various complex areas of law relating to dispute resolution to ordinary readers. The very best posts are published here.

The advent of collaborative practice as a means of resolving family law disputes has provided couples with a means of completing a divorce or separation in a conciliatory and cost effective manner. With more than 200 practitioners currently registered with the Law Institute of Victoria’s Collaborative Law Section, a significant number of lawyers have undergone training that allows them to practice collaboratively.

The Law Council of Australia’s Basic Training Requirements

In response to its increasing popularity of collaborative practice, the Law Council of Australia has published the Australian Collaborative Practice Guidelines for Lawyers. This document encompasses a series of “Basic Training” requirements in order to be recognised as being collaboratively trained. This set of overarching training requirements forms a best practice guide for ensuring practitioners engaging in collaborative law are appropriately prepared for acting in this unique practice area.

army-recruit-is-in-training-at-the-army-physical-training-school-brisbane-1942 Image: Courtesy State Library of Queensland

The Basic Training requirements provide for the teaching of a range of skills that are unique to the practice of collaborative law. This is particularly so with the requirement that practitioners are provided with relevant training of the “collaborative model”.

What is Collaborative Practice?

Collaborative practice, as the name suggests, is a non-adversarial process used to resolve disputes. It requires the parties and their legal representatives to enter into a formal contract that puts the focus of the process settling a matter rather than resorting to litigation. Terms in the agreement generally refer to a commitment for each party to engage in the collaborative process in good faith and to share all available relevant information pertaining to the dispute with the other party. If the dispute is not resolved and parties seek to formally commence legal proceedings, the lawyers engaged in the collaborative process are contractually required to cease representing their clients. This requires the parties to engage new lawyers, generally at a significant cost, and serves as a major incentive to the parties to find common ground and work collaboratively to resolve their dispute.

Collaborative practice is conducted in the presence of each party and their legal adviser in what is described as a “four way meeting”. Several four way meetings take place over the course of a number of months, with each run according to agenda devised by the parties in consultation with their lawyers prior to the meeting. The conclusion of the four way meetings seeks to culminate in the drafting and execution of an agreement that resolves the dispute in a manner that is mutually acceptable to both parties.

The Unique Nature of Collaborative Practice

The collaborative model, as describe above, is an entirely unique approach to the resolution of disputes. While traditional mediation is also seen as an alternative to litigating matters, it differs from collaborative practice in many respects. The absence of a mediator in collaborative practice requires the legal representatives to facilitate the discussion rather than simply representing their client. Additionally, the capabilities necessary to operate collaboratively in the absence of a court-mandated framework for discovery and good faith negotiation is at odds with that of conventional alternative dispute resolution approaches. Accordingly, this skillset is unique to collaborative law practitioners.

The skills required of collaborative practitioners are also unique insofar as the model makes use of independent experts to facilitate the settlement of disputes. It is standard practice in a matter being resolved collaboratively to utilise the expertise of third party professionals, especially those who are trained as child specialists or financial advisors. These experts assist the parties and the lawyers in exploring interests (rather than positions) and potential options to satisfy the needs of the parties. Additionally, their experience assists the couple in being able to understand the impact of their separation on their children, as well as its effect on the financial position of each person once the dispute has finalised.

While the interaction of legal practitioners and independent experts is extremely common, the manner in which they work together in a collaborative setting compared with that of general legal practice is significantly different. In many jurisdictions, the relationship between independent expert is governed by a formal practice note, issued by the court. Lawyers typically engage independent experts by way of a formal retainer, setting out the advice necessary for the purposes of the matter. The expert will then write a formal report, setting out their findings. In many cases, an expert will be required to “hot tub” with an expert appointed by the opposing party in order to reach consensus conclusions and to narrow the issues in dispute. Additionally, experts retained in a litigation matter are subject to rigorous cross examination from other parties, adding an adversarial flavour to their contribution made for the purposes of resolving the matter.

In contrast, a collaborative approach requires each party to jointly appoint an expert, often by way of a shared recommendation by the practitioners representing them. The expert will work with each party in the room together and will rarely engage in separate discussions with parties individually. Rather than the lawyers approaching the assistance of an expert’s contribution as potentially suspect or misconstrued as may be the case in litigated disputes, they are able to respect and value their support in a truly collaborative fashion. Accordingly, the interdisciplinary approach to collaborative practice means a collaborative practitioner is required to have a unique skillset when involving experts in a matter being managed collaboratively.

Negotiation for All, Not Just the Collaborative

While there are many aspects of the “Basic Training” requirements that are unique to collaborative practitioners, it is clear that are not all exclusively within the domain of collaborative law.

A crucial example of this is the necessity that collaborative practitioners must be aware of and trained in negotiation theory; specifically, that of the differences between interest and positional-based bargaining.

A key tool in the arsenal of a collaborative practitioner is assisting the parties to consider the distinction between positions and interests. Unlike traditional positional bargaining, focusing on interests allows the parties to concentrate on the key issues that require resolution, rather than the parties becoming distracted on minor matters, falling into positional impasses or creating acrimony in the process. This prioritisation of interests, rather than positions, also assists the parties in being able to develop creative solutions that are mutually amenable, rather than being focused on finding a middle ground between two respective positions, neither of which may be the best holistic outcome.

But similar strategies are used in some forms of mediation generally, rather than solely within a collaborative setting. Facilitative mediation, for instance, also focuses on steering the parties toward concentrating on positions rather than interests. This occurs in a traditional mediation setting, involving the parties, their legal representatives and a trained mediator. Additionally, several popular negotiation courses offered by institutions such as MIT and Harvard University train legal practitioners and business executives to be aware of the distinction when being involved in a negotiation.

Accordingly, negotiation theory should not be considered solely a skill that is relevant to collaborative practitioners, but to the legal profession generally. Despite the differences in approach to alternative dispute resolution, ensuring that the legal profession is adequately trained to delineate between a client’s needs and wants should be recognised in considering the skills that are desirable for all practitioners to hold.

It is clear that collaborative practitioners are required to be appropriately trained in their interaction with fellow lawyers in a collaborative setting, the collaborative model in general and the manner in which the interdisciplinary focus of the practice differs from the general use of experts in a dispute. These are skillsets that, currently, are largely unique and confined to the practice of collaborative law. It is essential for the continued success of collaborative practice within Australia for the distinction between these attributes to other forms of alternative dispute resolution to be clear.

However, it can also be said that collaborative law requires skills that are not solely used within its discipline. A knowledge of negotiation theory is highly desirable for legal practitioners to possess for everyday dispute resolution, not just that involving collaborative practice. To that extent, it is clear that the collaborative practice “Basic Training” requirements of the Law Council of Australia encompass training that is both unique to collaborative practitioners and also relevant to the legal profession generally.

Mr Ben Zocco has recently completed Bachelor of Arts and Bachelor of Laws degrees from Monash University and will be commencing as a graduate lawyer with a national law firm in 2017. He has spent the later years of his legal education studying various forms of alternative dispute resolution and looks forward to the opportunity to put this knowledge into practice as a lawyer.

Australia, all the way with ADR. Or are we?

Posted on 07/04/2014 by Associate Professor Becky Batagol

I have been putting the finishing touches on my chapters for the second edition of our book Non-Adversarial Justice, to be published by Federation Press in the middle of this year. The book is co-written with Monash and former Monash law colleagues Michael King (now a Magistrate in WA), Arie Freiberg and Ross Hyams. The book brings together a collection of ideas and practices from disparate areas of the criminal and civil justice system that share some common responses to the adversarial nature of our legal system. We describe these processes as ‘non-adversarial justice’ which we acknowledge is a vague and probably overly negative term, but we have stuck with it because we haven’t been able to come up with anything better. The book explains our views on these commonalities and provides a chapter on the key aspects and ideas of each ‘non-adversarial’ practice or process, including therapeutic jurisprudence, ADR, restorative justice, preventive law, holistic law and creative problem-solving. The are also chapters which situate these ideas in various fields of practice and chapters which thematically draw together new ways of thinking on lawyers, courts and legal education. The book focuses on Australia with reference to international developments.

The first edition book came out in 2009. In this new edition, we look back over the past 5 years of innovative Australian justice policy and conclude that:

“Because non-adversarialism is new and contentious it is also politically sensitive. Governments that regard this form of justice as being “soft” on crime, ineffective, “heavy-handed”, and expensive have abolished courts, schemes and programs while others recognise their value and have introduced procedural reforms, increased the number of courts and expanded their jurisdiction to cover new areas of harms or problems.”

I have been updating the chapters on family law processes and on ADR. Once of the things I enjoy about writing this book is how each chapter gives me a near-perfect helicopter-view of the terrain of that area. In relation to ADR policy, there has been a noticeable cooling in government attitudes towards ADR processes within our broader civil justice system in the past half-decade. In particular, I have observed a drawing back from widespread implementation of ADR requirements in the justice system. This is evidenced by the repeal of pre-action legislation in both Victoria and NSW in 2011 and 2013 and, also in 2013, the dissolution of the 18-year-old National Alternative Dispute Resolution Advisory Council (or NADRAC), the independent body established to advise the federal Attorney-General on policy issues relating to ADR. In our book we summarise the Australian ambivalence towards ADR in the following way:

“These changes illustrate how the place of ADR and other non-adversarial processes in the justice system is contingent upon the support and patronage of government. Real resistance to non-adversarial practices remains and can make even established non-adversarial processes the subject of political contention. “

Pre-action procedures, originally developed in England and Wales in the late 1990s, encourage early settlement of disputes, full disclosure of information between the parties and, where the matter cannot be resolved, the narrowing of the issues in dispute, all before proceedings have commenced. Effectively, they cement the place of ADR in the ordinary civil litigation process. Pre-action procedures have been introduced into three Australian jurisdictions since 2009, making this area the most dynamic in the already active field of ADR. However, the legislation introducing pre-action procedures has already been repealed in two of these jurisdictions (Victoria and NSW), revealing the significant unease that exists around the presence of ADR in the contemporary civil justice system in Australia, particularly where lawyers and the parties they represent are mandated to use ADR processes outside specialist jurisdictions. Only at Commonwealth level do pre-action procedures remain a at broad-scale level in Australia, known as “genuine steps” statements, which must be filed prior to litigating in the Federal Court of Australia and the general lists of the Federal Circuit Court of Australia under the Civil Dispute Resolution Act 2011 (Cth). So far, the federal government has indicated no public interest in changing these laws.

In England and Wales, where there are more than 12 -pre-action protocols covering particular areas of civil law, a recent review of rules and principles governing the costs of civil litigation found that the decade-old pre-action protocols system generally worked well, with a few tweeks necessary here and there. However it was recommended that one protocol that covered all areas of civil practical not governed by a specific protocol be repealed. Lord Justice Jackson, author of the review, argued that pre-action protocols work best when tailored to specific areas of practice rather than adopting a “one-size-fits-all” approach to civil litigation generally.

The English and Welsh experience of pre-action protocols shows that they can change litigation cultures and encourage more settlement (although ADR processes themselves may not be used). For Australia, the implications are that we may be better placed to develop pre-action procedures tailored to the peculiar litigation dynamics of specific areas of civil practice rather than broad-scale requirements as currently legislated in the Civil Dispute Resolution Act 2011 (Cth). Indeed in Australia, some specialist jurisdictions have for some time successfully required participation in ADR before court proceedings can be instituted for certain personal injury claims in Queensland, for farm debts in NSW, for NSW retail tenancy disputes, and in family law disputes since 2004. Failure to comply with these requirements opens a party up to an adverse costs order.

The recent skittishness around ADR policy in Australia can be connected to new governments coming to power and signalling that a new sheriff is in town. These governments, in Victoria, NSW and at federal level, have not benefited from years of high level bureaucratic advice on justice policy, may not share the commitment to ADR and may prefer to appeal to more conservative elements of the legal profession who see innovative dispute resolution policy as a challenge to the profession itself. The legal profession is inherently conservative and is slow to embrace widespread change. For so long, litigation, alongside negotiation associated with litigation practice, have been the way that lawyers have furthered their client’s interests. Compelling parties to use ADR processes such as mediation is a step too far in the eyes of many, as Victorian Attorney-General Robert Clark explained in the 2011 second reading speech for the Civil Procedure and Legal Profession Amendment Act 2011 (Vic)

“It is common sense and good practice for parties to attempt to resolve their dispute without resorting to litigation if there is a reasonable prospect of success in such an attempt. However, the government’s view, and the view of many practitioners, is that to seek to compel parties to do so through these heavy-handed provisions will simply add to the complexity, expense and delay of bringing legal proceedings, because of the need to comply with these mandatory requirements, whether or not they are likely to be useful in any particular case.” (Parliament of Victoria, Parliamentary Debates, Legislative Assembly, 10 February 2011, Victorian Government Printer, Melbourne, p.307).

My own view is that governments across the Australian jurisdictions should be putting effort (and a great deal of effort, too) into ensuring that ADR processes that are provided are of high quality and have robust protections built in for the disadvantaged and vulnerable, acknowledging that not all cases should settle, although many can, so that court processes are still necessary and towards finding the right balance between legal and non-legal service provision for civil disputes. Getting these issues rights asks us to face the tough questions head-on and address the real tensions behind the ideal of access to justice in a constrained financial context. But this is the space we need to be in for us as a nation to develop the next frontier of justice policy. Whole-scale abolition of schemes designed to increase settlements as occurred in NSW and Victoria and dissolution of high-quality advisory bodies such as NADRAC takes us further away from where we need to be. These decisions have taken us backwards.

What do we all have to do to move forward on this important social issue?