10/9/20 TH THE NE NEW ‘R W ‘ROC OCKSTAR’ OF F R’ OF FAMILY Y LA LAW INTERDISCIPLINARY COLLABORATIVE PRACTICE Presented by: Shelby Timmins, Divorce Done Differently Susan Abrams, AT ATW Family Law Simeon Levin, Fitzpatrick cks Private Wealth OUR FAMILY WIZARD WEBINAR October 2020 1 What LAW LAND looked like not that long ago. • Disputing parties would typically be headed to court . • Even amicable disputants could be drawn into the court process which fostered resentment rather than healing . • Today, a growing majority of us are realising the benefits of alternative dispute resolution (ADR) . • Knowing what ADR options are available is crucial. • It’s time to be creative when implementing ADR solutions . 2 1
10/9/20 “Ah, yes, DIVORCE... From the Latin word meaning to rip out a man’s genitals through his wallet.” - Robin Williams - 3 The Toll Family Law Can Take Th • Working in this environment takes its toll on the professionals involved. • The disillusionment and burn-out are legend among Family Lawyers. • There is an appetite for a different way to practise Family law. • The increase in alternate dispute resolution and the many different types of dispute resolution developed over the last 20 years speak for themselves. 4 2
10/9/20 “The Courts of this country should not be the places where resolution of disputes begin. They should be places where the Kitchen disputes end after alternative Table methods of resolving disputes Discussions Family have been considered and tried.” Dispute Court Resolution - Sandra Day O'Connor- OPTIONS Lawyer Mediation FOR Negotiations CLIENTS Arbitration Collaborative Practice Early Neutral Evaluation (ENE) 5 Interesting Times In Family Law Hon Alastair Nicholson October 2017 Former Chief Justice of the Family Court endorses Collaborative Practice! “ I think we are looking at interesting times in family law. I’ve always thought a collaborative approach deserves more attention. I think a collaborative approach is very important and deserves more emphasis than it has been given”. https://www.liv.asn.au/Staying-Informed/LIJ/LIJ/October-2017/Interesting-times-in-family-law;-the-Hon-Alastair- 6 3
10/9/20 CHOOSE YOUR FAMILY LAW DISPUTE RESOLUTION MENU YOUR OWN ADVENTURE KITCHEN TABLE MEDIATION COLLABORATIVE ARBITRATION LITIGATION (FDR OR PRIVATE) PRACTICE 85% SUCCESS 85-96% SUCCESS AWARD GIVEN ARE THERE EVER ? % SUCCESS ANY WINNERS? 1 week – 3+months 3 - 6+ months 2 – 4 months 1.5 - 3+ years Quick if parties agree Client or Client driven. Client controls Lawyer/Court driven. Entirely client driven professionally Interest based. the process. Win/lose. May be a power YOUR SPEPARATION & driven. A series of 4/5 way Shorter High Fees. imbalance. Potential pressure to meetings. timeframe than Creates division. resolve matter. Open sharing of Court. Emotional toll. DIVORCE DISPUTE Can create win/lose information. Private. Lengthy timeframe. outcomes. No threat of litigation. Can be used to Negative impact on May be under the Involvement of other resolve all or part ongoing relationships. RESOLUTION ‘MENU’ threat of litigation. non legal of a dispute. professionals. Win/win outcomes. $$ $$$ $$$ $$$$$ $ $2k- $10k+ $10k - $30k+ $10k- $50+k ENDLESS Minimal Cost (subject to (subject to the (subject to the whether legally issues, meetings & issues) assisted) professionals) www.divorcedonedifferently.com.au Phone: 0400045583 hello@divorcedonedifferently.com.au 7 Working together to plan a life apart “It is the long history of human kind (and animal kind too) that those “ We will strive to be honest, cooperative and who learn to collaborate and respectful as we work in this process to achieve improvise most effectively have prevailed.” the future wellbeing of our families. We commit ourselves to the - Charles Darwin - COLLABORATIVE LAW PROCESS and agree to seek a positive way to resolve our differences justly and equitably ”. 8 4
10/9/20 Interdisciplinary Collaborative Practice A bespoke process Divorce Respectful without Resolutions court https://youtu.be/nIplP2_MSLw Thank you to the Collaborative Professionals (NSW) Inc for the video “Rather than warriors or hired guns, collaborative lawyers are more like legally-trained diplomats.” A team Interest based approach Working negotiations towards a common goal 9 Stu Webb The Godfather of Collaborative practice What is Collaborative Practice? • The collaborative process is a shared commitment to resolve a dispute without resorting to court action. • It focuses on the future of the family. • The parties, their lawyers and any other professional advisors such as financial experts (“the collaborative team”) commit to resolving the issues in dispute without going to court. • The premise of the collaborative team is that the parties and their chosen professionals act as a problem solving team rather than adversaries. • Parties and their advisors are expected to show respect, compassion, understanding and act co-operatively during the process. • The focus is on the parties identifying their underlying interests rather than positional bargaining. • An important aspect is that at the beginning of the collaborative process the parties and their lawyers are required to sign a Participation Agreement and agree that if their dispute is not resolved and one of them chooses to take the matter to court then each party must retain new lawyers. • It is a `bespoke service’. • The parties direct the process. This means there is a vastly reduced prospect of recrimination or lingering ill will between the parties. 10 5
10/9/20 How does the collaborative process work? • The process consists of a series of informal discussions and joint meetings with a view to settling all issues amicably. • Each meeting is minuted and any action required for future meetings is agreed upon. • Homework can be set. • Where appropriate, specialist advisors such as financial neutrals, child specialists, mediators and even senior counsel can assist with issues which may arise. • Once a settlement is reached, settlement documents are drafted. • It is an interest based negotiation. 11 Th The Collaborative Process Thank you to Southern Sydney Collaborative Professionals for this pictorial, especially Fiona Kirkman. 12 6
10/9/20 Th The Benefits of the Collaborative Process 1. You are able to resolve a family law dispute without destroying a family. 2. It is a private process that enables people to deal with sensitive issues rather than airing them in an open court. 3. Parties can set their own time frame within which to settle their dispute. 4. It provides the best opportunity to craft a resolution that is best suited to the interests and needs of each party (especially any children involved). 5. It will spare all involved from the emotional damage that litigation can cause. 13 FIRST INTERVIEW WITH A FAMILY LAW CLIENT A TRADITIONAL INTERVIEW THINKING OUTSIDE THE BOX • Names, dates of birth and occupation of the client • Confirm their appointment by email attaching information about ADR Best contact details What is the most important thing/s we can talk about today? • • Names and dates of birth of children What is keeping you up at night? • • Date of Cohabitation What do you consider would be a good outcome for you in your situation? • • • Date of Marriage • How have you and your former partner resolved disagreements in the past? • Date of separation (if applicable) • Have you considered how you would like to resolve your family law issues? Date of Divorce (if applicable) If yes, have you considered: • • • Mediation Assets and liabilities • Collaborative Practice • • Initial contributions • If not, would you like some information on these methods of resolving your • Contributions during the relationship dispute? • Post separation contributions • Watch their body language, their mood, what information they History of the relationship freely give and what they hold back. • Employment/Income earning capacity of each party • Have you already received legal advice about your situation? If so, from • whom? 14 7
10/9/20 CONVE VERTI TING YOUR CLIENT T • LISTEN to their needs. How do they want their separation/divorce to look like? • Address their FEARS . • Ask WHY ? • EDUCATE and INFORM them of their options. • Discuss their CONCERNS : • How can I be assured of transparency? • What if I don’t agree with what is being said? • Can I choose the other team members? • What if I want out of the Collaborative Process? • Get them to speak to the coach 15 The ‘Paradigm Shift’? As professionals we need to… LEAVE BEHIND: LEARN: • Client direction • Directing clients • Working as a team • Knee jerk reactions • Sharing responsibility • Taking control • Communication • Bargaining • Transparency • Competition • Needs/Concerns • Advocacy 16 8
10/9/20 CO COMMUNICATION 101 The collaborative process will require you to become an expert in communication. You will need to communicate with: 1. Your client 2. The other lawyer 3. The other client 4. All team members. 17 TH THE INTE TERDISCIPLINARY COLLABORATI TIVE VE TE TEAM 18 9
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