At the commencement of the collaborative process all parties and their lawyers will enter into a Participation Agreement. Pursuant to the terms of the Participation Agreement the parties agree that they will not litigate their matter in the Family Court. This means that if either you or your partner decides to commence proceedings in Court and continue with such proceedings during the collaborative process, your collaborative lawyer will not be able to represent you in the collaborative process they will only be able to refer you to another trusted practitioner to handle your Court case.
How does it all work?
Collaborative practice is different from going to Court. You will be in a room with your lawyer as well as your partner and their lawyer. Both lawyers will be properly trained in the collaborative approach. We all work together towards the common goal of resolving the dispute between you and your partner, with emphasis on retaining your dignity and best interests.
You will have your collaborative lawyer advising and assisting you throughout the negotiations. The playing field will be more even between you and your partner, because you and your partner will have your respective lawyers to support you, as well as other professionals if necessary and with your consent.
The integrated approach of Collaborative practice
Collaborative lawyers often work with other professionals, such as accountants, financial planners, valuers, counsellors and mental health professionals, who are trained in the collaborative approach. These people will work together with your collaborative lawyers with your consent with a focus on developing an overall dispute resolution package that will provide both you and your partner with security and direction.
Overview of Mediation
Mediation is a voluntary process, but the Family Court may order that you and your partner participate in mediation, depending on your circumstances. Only you, your partner and the Mediator will be part of the Mediation process. Depending on the level of conflict and personal dynamics of the relationship between you and your partner two Mediators may be necessary.
If the Family Court orders mediation or you and your partner agree, you may be allowed to have your lawyer present in the mediation. The Mediator’s role is to assist communication between you and your partner so that you can have open discussions and negotiate a settlement.
Role of the Mediator
The Mediator’s aim is to facilitate open communication between you and your partner so that you can:
- identify issues of the dispute;
- generate options to address these issues; and
- agree upon ways to resolve the issues (i.e. ‘settlement’).
The Mediator’s role is essentially a neutral one. The Mediator:
- will not take sides;
- will work with both you and your partner to help you negotiate your own decisions together; and
- will not represent either of you in Court either before or after the Mediation.
Characteristics of Mediation
- All decisions in mediation will be made by you and your partner, not the Court or anyone else.
- Mediation will help you to identify important issues that relate to your assets and finances and/or care arrangements for your children.
- Mediation is readily accessible, making it fast and efficient.
- Mediation is a popular form of alternative dispute resolution.
What is the difference between Collaborative Practice and Mediation?
Mediation involves an independent neutral professional who facilitates discussions between the parties and helps them to reach an agreement. The Mediator does not provide legal advice to either party during the discussions.
In Collaborative practice, the lawyers provide advice to their clients and help them assess realistic options. The lawyers then support the clients through the negotiation process to reach an agreement.
Costs associated with the Collaborative Practice and Mediation
- Initial consultation with your lawyer.
- Assistance of the lawyer to complete a short history statement, if necessary.
- Assistance of the lawyer to provide full disclosure of documents, if necessary.
- Attendance by the lawyer in the Mediation session and in the Collaborative meetings.
- Attendance by the lawyer in the Mediation, or throughout the entire collaborative process.
- Preparation of consent documents by the lawyers.
- Involvement of the lawyer throughout the collaborative process.
Other information relating to costs of Collaborative practice and Mediation
- Discussions and agreement on the payment of the fee.
- The fee may be a shared arrangement.
- The costs of the Mediator will be agreed prior to the commencement of the process.
- Because of the short duration for the preparation for attending on and completion of the Mediation and Collaborative practice processes, the costs are limited.
Cost of Collaborative practice Mediation compared to Litigation
Because Mediation and the Collaborative process resolve matters speedily and amicably, the financial and emotional damage normally caused by Litigation will be avoided by you, your family and your friends.
Mediation and Collaboration will also serve to minimise conflict between you and your partner, so that you can make amicable decisions regarding your finances and other personal interests. It will form a basis for your ongoing relationship with each other.
How is Collaborative practice different from traditional Court proceedings?
When one party commences Court proceedings they file an Application with the Court setting out the orders they want the Court to make. Both parties then go through a sequence of Court proceedings and conferences and hearings that can take many months or possibly years before they have a final trial where a Judge makes a decision as to what orders will be made.
Through Collaborative practice, separating couples and their lawyers work together, sometimes with other professionals such as relationship therapists, valuers, accountants and financial planners, to find out what each party wants and how that can be achieved. The Court is not involved in this process and no documents are filed with the Court whilst the negotiations are ongoing. If an agreement is reached, the parties can elect for it to be drafted as a consent order to be lodged at the Court or to be incorporated in a binding financial agreement.
Efficiency of Collaborative practice and Mediation
Dispute resolution via Mediation or Collaborative practice can be arranged in a timely manner and satisfactory outcomes can be reached relatively quickly. With either method, negotiations usually take place either over a number of sessions, or during one day, depending on the complexity of the dispute. By using either Mediation or Collaborative practice settlements can usually be reached after 6 to 8 hours of negotiation. Sometimes, Collaborative practice may take longer depending on the complexity of the dispute and whether other support professionals need to be consulted.