COLLABORATIVE PRACTICE – VEGETARIAN LAW OR COMMON SENSE?
A new approach
Mention a lawyer to the average lay person and, as often as not, the image that springs to mind is a hard-nosed attorney, deploying grit and guile to win at any cost. The image may be harsh, but the caricature exists for a reason. Litigation breeds an adversarial approach to the law in which the objective is victory over the other side and not necessarily for the benefit of the parties as a whole.
That approach can wreak particular damage after the breakdown of a relationship, stoking existing tensions, seizing on fragility and rarely working for the collective good of the family concerned. Litigation carries an element of uncertainty and can be messy and extremely costly. Encouraging parties, especially parents, to be litigants is a poor basis for the essential ongoing and future relationship as co-parents.
In 1990 Stu Webb, a Minnesota family lawyer, exasperated with the adversarial nature of his own legal practice, began to experiment with an alternative approach. Webb believed that if both parties and their respective lawyers could work collectively, they were far more likely to achieve the best and binding outcome for the family concerned. This was the birth of collaborative practice.
Steadily, the approach took root and word spread. The US now has over 10,000 trained collaborative practitioners. The UK, where Collaborative Practice was first adopted in 2003, has 1250. There were only 12 lawyers trained by Resolution. By February 2009, the number increased to at least 1,250, with training led by Resolution, whose approach is taught as part of training for solicitors in England.
The latest jurisdiction to catch the Collaborative Practice wave is Hong Kong, which is leading the way in introducing the discipline to Asia. Given the exponential rise in the number of Asia’s super-rich, and interest in Alternative Dispute Resolution, there is increasing interest in an approach that improves the efficiency and reduces the fallout in family proceedings.
Winnie Chow is a Partner at Hampton, Winter and Glynn and one of the territory’s leading family lawyers. She was attending a conference in Rome in 2008 when she was first introduced to Collaborative Practice. Chow recalls:
“There was a debate between a traditional litigator and a collaborative practitioner on the merits of litigation versus Collaborative Practice. The litigator dismissed Collaborative Practice as ‘vegetarian law’ but what was being said by the Collaborative Practioner made complete sense to me. I came back to Hong Kong determined to reach out to lawyers and other professionals to see if we could get things moving here.”
Chow’s comment hints at one of the things that makes Collaborative Practice unique – its multi-disciplinary, team-based approach, striving to reach a bespoke resolution dealing with interests of the family, and shifting away from the traditional positioned bargaining approach. Once the two parties and their lawyers agree that they wish to adopt Collaborative Practice in resolving their family dispute, a single team is assembled. In addition to the lawyers from each side, this might include joint specialists in family finance, child psychology, or any other relevant discipline.
What is Collaborative Practice?
To take part in Collaborative Practice, each person appoints their own lawyer who has been trained in collaborative practice. Then, instead of negotiating by letters between solicitors, filing acrimonious evidence and going to Court, you meet together to work on solutions face-to-face but with the legal professionals by your side throughout the process, to give you advice and guidance along the way.
The key element to the process is the “Participation Agreement”, which is the commitment to seek a resolution through Collaborative Practice and the lawyers and other professionals involved in the process commit not to have recourse to litigation. Therefore, if the collaboration fails, and the parties themselves decide to proceed to litigation, the lawyers and other professionals involved, must resign from the matter and cannot be further involved. This creates an incentive for all involved to focus on reaching a settlement and use their best endeavours to do so.
Each party also provides at the start an “Anchor Statement”. This is a basic record of their attitude and intent going into the process, designed as a bulwark to look back over when the discussions provoke a consideration of quiting the process due perhaps to emotional responses.
Free of a court-mandated timetable and in a safe, transparent environment, the parties have full control of the agenda, the timing of the process, and are able to tailor solutions to the needs of the entire family. The parties share their objectives and their particular concerns. The lawyers will deliberately aim to encourage use of non-inflammatory language and promote communication.
At the meetings, the aim is to generate as many options as possible and then look at common points of interest. As the parties themselves are making the decisions, they can often be much more creative and flexible in the results which may otherwise not be achievable through the strict rules of the Court.
The lawyers and other Collaborative Practice professionals do a lot of preparation in the background and work together as a team, identifying areas of common interest, and potential resolution. If the parties require advice on the law on particular issues, the lawyers can provide a joint letter of the law on that area, or appoint a single joint expert.
The parties discuss how financial information will be shared. The couple can choose to bring in specialists in financial planning, tax issues and in pensions, or people trained to assist children in understanding and coping with the changes, which divorce or separation will bring to their lives.
At the final meeting, the solicitors will help with the necessary paperwork for the relevant family proceedings to formalize the parties’ agreement on a non-contentious basis. Both solicitors help to explain when and how the proceedings and court orders would be finalised. Great care and preparation is taken by the solicitors to end with a respectful and dignified conclusion, recognising that this is a major life event for the parties.
A further advantage of Collaborative Practice over court controlled proceedings is the certainty it can provide once the settlement is arrived by the parties’ consent, compared to court proceedings where there may be appeal, because of either or both parties being dissatisfied with the judgment. Further the Collaborative Practice process allows the parties, who know best the family’s needs, to make decisions governing their children’s and their future, rather than leaving it in the hands of the judge, who will remain a stranger, with finite knowledge of the background and needs of the parties.
For the lawyers involved, Collaborative Practice requires a radical shift of their role in family proceedings: a move from adversarial jousting to teamwork. It is one choice that the trained practitioners can offer to their clients when first approached.
In addition, Collaborative Practice is truly a cease fire in a sense that mediation is not, because at mediation, the parties can still maintain an adversarial stance outside of the mediation, as litigation may well be running in tandem with the mediation and therefore, the parties will take positions and, their lawyers will advise them independently to make the best case for them.
Collaborative Practice works
What is it that makes Collaborative Practice such an attractive approach for increasing numbers of divorcing couples? The International Academy of Collaborative Practice claims an 86% success rate meaning settlement agreements were reached in 86% of the CP cases in Collaborative Practice cases whilst Resolution’s statistics show success rate of 85%. In explaining this, practitioners point to five key advantages over traditional litigation:
• Less stress: When it works, Collaborative Practice substantially reduces the psychological stress and animosity involved in a divorce. As Jain Brown, a Partner at Hampton, Winter and Glynn, puts it: “The nature of the court process often creates acrimony; by contrast Collaborative Practice promotes a more harmonious and co-operative approach. It’s better for both parties, and far less damaging to any children involved.”
• Less time: A well managed Collaborative Practice case will often halve the time required for divorce proceedings. In England and Wales the courts now fast-track settlements based on collaborative agreements. Statistics show cases reach resolution within 6 to 8 sessions.
• Less money: Of course, less time equates to a lower cost. Whilst Collaborative Practice, with its team of professionals, is not an inexpensive option, but it is invariably cheaper than litigation, emotionally and financially.
• More privacy: As celebrities including actor/comedian Robin Williams and his former wife Marsha Garces, Walt Disney’s nephew Roy Edward Disney and his wife Patricia Disney, or screenwriter Cameron Crowe and his ex-wife, rock musician Nancy Wilson have found, CP offers far greater privacy than public and protracted court proceedings. We have all seen the drama of the Paul McCartey/Heather Mills divorce and the public display of their private lives. It’s a benefit that is likely to appeal to many couples, regardless of class and background.
• Stickability: Collaborative Practice promotes mutual control of the separation process and more transparent sharing of information. This often leads to a more innovative, problem-solving approach by the couple concerned. As a result, its proponents believe it produces settlements that are more consensual and durable than those thrashed out through the conventional court process.
Next stop HK
A determined group of professionals is banging the drum for Collaborative Practice in Hong Kong. Training courses have been run by specialists from both the US and UK, as Hong Kong seeks to develop a hybrid Collaborative Practice model that best suits its legal system and social norms. Over 20 solicitors have now been trained in Collaborative Practice, along with a number of barristers and practitioners from a range of other disciplines, and these professionals can be recognized by their use of “Collaborative Practitioner”. Some of the territory’s top family judges are starting to voice their support for the technique.
Of course, there will always be those who favour the cut and thrust of court - the die hard debaters and table-thumpers. But as Winnie Chow puts it:
“Every so often, an idea comes along that could truly change the way we do things for the better. Collaborative Practice gets both sets of lawyers and clients working together in harmony to achieve the best possible outcome. If that’s vegetarian law, I’m happy to give up meat.”
Hampton, Winter and Glynn truly believes in the process and four members of their family team have been trained in Collaborative Practice. They can be contacted at: -
Miss Winnie Chow, Partner
Tel.: +852 2847 2456
Ms. Jain Brown, Partner
Tel.: +852 2847 2486
Ms. Esther Ho, Solicitor
Tel.: +852 2847 2418
Ms. Helen Ladret, Solicitor
Tel.: +852 2847 2302
Please feel free to contact any of them to discuss if Collaborative Practice is the right option for you.