By Lisa Rennie
I don’t know about you but ever since I aspired to become a lawyer I’ve had a recurring dream that one day I’d waltz in to the High Court Harvey-Specter-style, lay down the law using as much legal jargon as possible and when the judge slams the gavel down hailing me victorious, I’d throw a wad of papers in the area (that I’d probably need later on); then I’d walk out of the court room pronouncing ‘and that my friends, is how it’s done’ as the grand oak double doors slam shut behind me leaving everyone in total awe.
However, reality is that court is sometimes unnecessary and there are a myriad of cases that could be resolved before ever reaching the litigious stage. This is achieved by the increasingly popular method of Collaborative Practice.
What is Collaborative Practice?
Collaborative Practice is at the opposing end of the dispute resolution spectrum to court proceedings. It is a holistic and multidimensional approach to negotiation aimed at maintaining relationships and reaching a mutually beneficial settlement for your client by taking into account the interests of all parties involved.
It is voluntary, confidential and achieved by roundtable meetings with clients and their lawyers discussing their individual situation in order to identify a suitable outcome. Additionally, health, financial and other various necessary professionals and experts may be involved during these meetings to aid an appropriate settlement.
Collaborative Practice entwines a distinct commitment to negotiate with all information laid out on the table so there are no hidden surprises with a promise to negotiate in good faith. And surprisingly enough when parties pledge to collaborate not litigate, it’s amazing how quick and effective a mutually beneficial agreement can be reached.
Isn’t Collaborative Practice just a fancy name for negotiation?
The greatest distinction between negotiations and Collaborative Practice is the looming threat of court proceedings. By signing a Collaborative Agreement, both sides are aware of the rules of the process and if they fail to reach an agreement both lawyers must relinquish acting for either party in any further proceedings.
Yes both parties voluntarily enter into Collaborative Practice just as they would have had they gone down the standard path of negotiation. However there is a strong emphasis in Collaborative Practice on the intent to work towards reaching a “win-win” settlement as opposed to simply negotiating to get what you want. This is highly relevant to situations where a valuable business relationship is in jeopardy or a situation that involves domestic violence where one party tends to dominate negotiations forcing the other to buckle under the pressure.
What does Collaborative Practice achieve?
Collaborative Practice eliminates the aggression of disputes and puts the clients back into control by giving them the power to identify their interests, issues, develop options and most importantly give the client the ability to determine the overall end outcome. It is a process built upon open communication, cooperation and information sharing that is cost effective and client oriented.
Cost & Time effective
The issues, goals, decisions and outcomes are all identified by the clients and their lawyers at roundtable face-to-face meetings. There are no drawn-out costly legal battles that will have you toing and froing from court.
It’s not a mandatory process therefore both parties knowingly and willingly contribute to an outcome that is entirely confidential.
The best possible outcome is efficiently achieved by providing the clients with the power to control their situations and put forward their idea of a ‘good outcome’ not the courts’.
Attempting to understand another party’s situation and concerns can go a long way in the dispute resolution process. By reaching a mutual agreement there is a dual consideration of each parties’ interests which facilitates the preservation of an equitable and respectful relationship.
Frequently used in Family Law disputes, Collaborative Practice is now proving useful in preserving valuable relationships in Commercial disputes where valuable business relationships are at stake.
So what’s this have to do with you?
Impress your boss with a dynamic new process that revives the old and tired ADR methods. After all, it’s best to first consider Collaborative Practice the next time you’re thinking of waltzing into the High Court.
Lisa Rennie is currently a 4th year Commerce/Law student at Burwood and works in the Financial Services practice of a mid-tier law firm.