Collaborative Practice in Family Law

Caley Kim

Associate
Accredited Family Law Specialist
Posted on 26/07/2021, Last Updated on 31/10/2023

Collaborative Practice is a non-adversarial dispute resolution process whereby lawyers (and other professionals, such as psychologists, counsellors, child development specialists, financial advisors, tax accountants, etc.) work together to facilitate child and family-focused discussion between the parties to negotiate a practical overall agreement to all aspects of a dispute.

Any discussions, correspondence or records of those discussions are conducted entirely on a “without prejudice” basis, meaning that they cannot be used or referred to in future Court proceedings.

Specifically, in the event you and your former spouse/partner fail to reach an agreement through the collaborative process, neither party may utilise or rely upon any of the information or documentation generated during such process in any subsequent litigation (other than that related to financial disclosure) and the Solicitors for each party agree that they will not continue to represent their respective clients once the process has been completed (should litigation ensue thereafter).

How is Collaborative Law different from Mediation/Court proceedings?

Unlike mediation, Collaborative Practice does not involve a neutral third party who facilitates the negotiations. Instead, it consists of a series of informal, face-to-face discussions between both parties and their respective lawyers (and other professionals engaged in the matter) in a supportive, “non-threatening” environment.

Throughout the collaborative process, you and your former spouse are able to receive advice and support from your lawyers, which promotes negotiations in good faith that are ‘interest-based’ rather than ‘rights-based’. 

By resolving matters through the collaborative process and without commencing Court proceedings, you may be able to avoid the stress, cost, delay, and uncertainty that litigation in the Family Court almost inevitably brings.

Collaborative Practice also helps keep hostility and confrontation – again prevalent in litigation – to a minimum.

How do I participate in Collaborative Practice?

If you are interested in participating in Collaborative Practice as opposed to traditional mediation, we highly recommended that you and your former spouse/partner each seek independent advice from an experienced family lawyer – trained in the collaborative process – to ascertain whether it would be an appropriate forum for your particular case.

Once you and your former spouse/partner agree to engage in the collaborative process, you will be required to enter into a Participation Agreement setting out the “ground rules”. This agreement sets out (amongst other things) that:

1. You and your former spouse/partner agree not to commence Court proceedings, or threaten to do so as a means of coercing the other party to settle; 
2. You, your former spouse/partner, and respective lawyers agree to act in good faith, and be open and honest in dealing with one another;
3. If you or your former spouse/partner subsequently commence(s) Court proceedings, then both parties’ lawyers will be disqualified from acting further, and each party will require to seek new legal representatives.

During the course of the collaborative process, either party may in certain circumstances commence Court proceedings by terminating the Participation Agreement and appointing a new lawyer. Such circumstances include (but are not limited to) the following:

1. Your former spouse/partner fails to provide full and frank disclosure of financial or other essential information which affects your ability to receive the requisite advice from your professional representatives and, consequently, to make an informed decision about a particular issue or the matter in general;
2. An urgent Court intervention is required (for example, to preserve an asset or to prevent a party from removing the child(ren) from the Commonwealth of Australia without your consent);
3. You or your lawyer form a view that the collaborative process has broken down to the point where it is no longer appropriate.

Get Expert Advice

If you are interested in Collaborative Family Law Practice or have questions with respect to a family law matter generally, please call DS Family Law on (08) 9486 1766 to arrange an initial consultation with one of our experienced family lawyers. Indeed, our Director Mr Milos Supljeglav is a qualified Collaborative Family Law Practitioner.