The Collaborative Law ProcessA case study презентация

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The Collaborative Law Process A case study

a man’s genitals through his wallet”.
(Robin Williams)

be like circumcision with a weed whacker." (Robin Williams)

respectful as we work in this process to achieve the future well being of our families. We commit ourselves to the collaborative law process and agree to seek a positive way to resolve our differences justly and equitably."

have also used Collaborative Law during their separation

Lawyer Stu Webb and fellow divorce lawyers and mediators formed the Collaborative Law Institute.

Came about after Stu began to lose faith in the traditional role of a lawyer in family breakdown and was searching for an alternative.

On the 14th of February 1990 Stu Webb wrote to Justice Keith about his ‘New Idea’.

I’m sure, those occasional times, occurring usually by accident, when in the course of attempting to negotiate a family law settlement, we find ourselves in a conference with the opposing counsel, and perhaps the respective clients, where the dynamics were such that in a climate of positive energy, creative alternatives were presented.
In that context, everyone contributed to a final settlement that satisfied all concerned – and everyone left the conference feeling high energy, good feelings, and satisfaction. More than likely, the possibility for a change in the way the parties related to each other in the future may have greatly increased. As a result, the lawyers may also develop a degree of trust between them that might make future dealings more productive.

create this settlement climate deliberately? I propose doing this by creating a context for settling family law matters by, where possible, removing the trial aspects from consideration initially. I would do this by creating a coterie of lawyers who would agree to take cases, on a case-by-case basis, for settlement only. The understanding would be that if it were determined at any time that the parties could not agree and settlement didn’t appear possible, or if for other reasons adversarial court proceedings were likely to be required, the attorneys for both sides would withdraw from the case and the parties would retain new attorneys from there on out to final resolution.
I call the attorney in this settlement model a collaborative attorney, practicing in that case collaborative law.”

Excerpt from letter Stu Webb to Justice Keith 14/2/1990

and 2 lawyers & other prefessionals, as needed, work together as a team through a series of face to face meetings until agreement is reached. It is the concept of a ‘team’ and the face to face process that is essential for successful collaborative practice.

adherence to the Participation Agreement
Precludes Lawyers & Experts from participating in Litigation between parties
Early, full disclosure
Commitment to good faith negotiation and respectful demeanour
Agreement not to litigate or threaten litigation

“It Liberates the creative problem-solver within” Pauline Tessler

The Agreement creates a ‘safe container’ for your negotiations

study to call myself a ‘collaborative lawyer’. I am every day that is just how I work....

sign a contract that means I ‘give a client away’? The client won’t hire me in the first place when I tell them that!

to talk to people (lots)
You will have to talk to people about what matters to them and not what matters to us/ the law
You will need to trust your colleagues
Your client will drive the process- not you

the legal advice you normally would
You will still draft usual settlement documents

team
The Agreement
The use of parties ‘Interests’ to guide an outcome as opposed to their legal rights and entitlements

am, pervades all of my practice and I think makes me a better lawyer for it!

her collaborative lawyer

2. Lawyers meet and confer to prepare for first fourway meeting

3. Clients meet with respective lawyers to prepare for first fourway meeting

4. First fourway meeting

5. Clients debrief with respective lawyers

6. Lawyers debrief with one another and plan for effective subsequent meeting(s)

7. Process of preparatory meetings and debriefings after each fourway meeting continues until resolution is achieved

commenced cohabitation in 1986 and were married in 1988.
They separated in mid-2009 and were divorced in early 2013 . (23 year relationship)
Husband is a professional and earns $148,000 per annum
Wife is a professional and earns $82,000 per annum
There are three children then aged 20, 17, 13
The middle child lived full time with Husband and had a strained relationship with Wife- was an elite athlete
The eldest child lives with the Wife
The youngest child lives between both parents under an informal equal time arrangement

for a short period, after which Wife continued to live in the matrimonial home and Husband rented a property elsewhere.
The parties had been separated for almost 3 years before they consulted solicitors to finalise their property division
Both parties attended a free information session run by Brisbane Family Law Centre. Hayley had been in attendance at the session also. The Wife, at a later date, approached Hayley to be her Collaborative Practitioner. The husband engaged Clarissa.

August and October 2012
Each meeting took approximately 2 ½ hours
Each meeting dealt with different issues
Each of the lawyers had met with their client prior to the first meeting

the Collaborative Law Process
Clients to describe their Goals and Interests in the process
Identification of Issues
Homework

interests regarding the children. Both parents wanted to continue to be able to communicate with each other in relation to the children
Wife and Husband wanted the children to be happy, provided for and able to chase their dreams
Both parties wanted financial finality
They also wanted to set ground rules as to how they would negotiate and make decisions about the children in the future
Wife expressed desire to retain the family home, if financially possible, however wanted to have a secure home for her and the children
Husband wanted to be able to re-enter the property market, ideally within the next 12 months

relevant issues relating to property and children.
Property
Identification of the Property Pool
Range of values for each item
Full Disclosure
Identification of Needs
Children
Current Arrangements
Identification of Needs
The parties were happy with the current arrangements relating to children, so no further discussion was entered into.

application
Make enquiries as to the current valuation of investment property
Ascertain how many shares were held by the parties

Wife
Wife was required to do the following:
Check the divorce application as drafted by Husband
Check with the real estate valuer if an updated valuation would be required for the Matrimonial Home and if so how much would said valuation cost
Ascertain surrender values and beneficiaries for life insurance policies

Both
Both parties were required to provide to the other party their bank and credit card statements and superannuation values.

Homework
Identify the Property Pool
(including the somewhat awkward disclosure of the Wife’s credit card debt)
Discuss the “4 Step” Process
Discussion of Child Support
The second meeting was essentially devoted to giving the parties legal advice.

for end of financial year
Wife to find out what her actual borrowing capacity is and the conditions that would be attached to said borrowing
Wife and Husband were to make enquiries with the Child Support Agency regarding the change in assessment that would occur when middle child turned 18

final settlement of their property interests
It was decided that they would spend some time in separate rooms during these discussions
The property pool was not agreed at the commencement of negotiations

for Consent Orders
Consent Orders relating to Property
A Binding Child Support Agreement

and her super (save for split)

Husband retained investment property, his super and shares and received a cash payment of $110,000 and a super split of $40,000 and was credited with $24,000 in lump sum child support

% outcome (when drafted for Consent orders) was 48% to husband 52% to wife

recent financial settlement. I feel we reached a fair and equitable solution. My ex-wife and I can now get on with our separate lives whilst still cooperating when it comes to our kids. I doubt this would have occurred had we gone to court. The non-confrontational nature of the collaborative approach worked for me. Thanks again.”

The Wife-
“My family break up has been a draining, emotional time so the last thing I wanted to experience was more heartache and turmoil by going through a lengthy and difficult property settlement. So my ex and I decided to try a collaborative process in the hope that it would be gentler, not only on us, but our whole family. Most of the settlement negotiations were done with face-to-face meetings so we could both ask questions, receive honest answers and discuss options which meant the final decisions were made faster. Throughout the whole process, my lawyer provided me with legal advice and support. The collaborative process was a better one for me, and now I can move forward with my life.”

to agreement

to work with

Get collaborating- you never know what might happen.....