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Author: Jacqui Brauman

by Jacqui Brauman Jacqui Brauman No Comments

What is Collaborative Practice

Mediation and arbitration are both alternative dispute resolution tools, and collaborative practice is another. 

Now collaborative practice, for the last 20 years or so, has was only been really used in the family law setting. But very recently, there is now collaborative practice for wills and deceased estates. 

So what is collaborative practice? Well, it’s a form of alternative dispute resolution. 

It is where parties decide that they want to try and resolve things without going to court. So they have to have people represent them who are collaboratively practice trained. So whilst a lot of lawyers might say they like to act collaboratively, it doesn’t mean that they’re actually collaborative practitioners because they haven’t had the training.

If there were two parties, for example, each would have a lawyer who was a collaborative practitioner, and then there would also be a financial independent who was a collaboratively trained financial advisor. Then there’s also what they call a coach who is usually from a psychology background or a mediation background.

So there’s usually four professionals involved, at least, to bring this together, and all those professionals, who are collaboratively practice trained, sign an agreement with their clients that they will not go to court. 

So unlike a lot of matters, with collaborative practice there’s actually an incentive for the practitioners to resolve things out of court. Whereas unfortunately, as the legal system is, there is some incentive for lawyers to want to litigate because it earns them more money. 

So in collaborative practice there is a commitment to keep it out of court.

If the parties can’t resolve through the collaborative practice method and they end up in court, those practitioners who represented them as the collaborative practitioners are not allowed to represent them in litigation. So again, there’s more incentive to try and keep it out of court because as soon as it gets beyond collaborative practice, those practitioners really have to bow out and can’t act anymore because they’ve signed an agreement saying they won’t court.

The benefit of collaborative practice is really trying to get people to talk to each other, to come to a mutually beneficial solution. They keep control of the discussions themselves, more so than they would even in a mediation. 

There’s usually between three and six meetings, maybe, over a period of maybe three to six months to resolve it, which at the outset might appear like it’s a long time, because people want to get things over and done with. But in the scheme of things, when there is an estate dispute, or when there is a complex succession planning to be done, that might take 12 months anyway. So whilst the process of engaging in the collaboration might seem like a big process, actually it can save time and it can certainly save a lot of money because it keeps you out of court.

So traditionally only in family law, collaborative practice is also now available for deceased estates, and also succession planning. And soon it will come to employment law and other areas. 

by Jacqui Brauman Jacqui Brauman No Comments

Wanting It Over and Done With

Facing a legal issue is going to be stressful and overwhelming, but then I think where women go wrong is that they go, “Oh, I just want this over and done with.” 

“I want to hand it over to someone else to fix for me.” 

Well, unfortunately, because it is your matter, you do need to be the one managing it. Wanting it over and done with doesn’t mean that you should hand it over to someone else completely.

You can’t just hand it over to a lawyer as quick as you can, and you can’t just hand it over to the first lawyer that you come across.

Recently, in Victoria, we had a solicitor struck off because they had taken on a matter that they weren’t familiar with. It was for a friend, so they were doing it pretty much for free just to try and get their friend out of trouble. 

Lawyers often do feel like they want to help everyone, but lawyers need to do the areas of law that they’re familiar with. 

If you don’t know this about lawyers, you need to be able to find and hire a solicitor that will work the way you need them to work.

You need a lawyer that has the experience and the skill level in the area that your legal problem is in. 

You can’t just hand it over to anyone. If you want it over and done with, the best way is the strategically work with someone to help you achieve that.

Unfortunately, for that solicitor who was stuck off, he did a really poor job. He didn’t tell his client when there were court dates up, and didn’t know the forms to use, and didn’t really know what he was doing. It’s been bad for both the client and his solicitor friend. 

We don’t want that happening for you.

Legally Wise Women runs a course, How to Find and Hire the Right Lawyer.

Over and Done

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Horror Stories of Legal Fees

One of the main reasons that women quite often don’t go and get advice, or are anxious about getting advice, is because of this belief that solicitors cost a lot of money. 

And yes, they can. 

But not all do. 

You can have fixed-fee situation. 

So it brings to mind this situation that I was involved in, a couple of years ago, managing the estate of a lady’s husband who’d just passed away. And her adult sons challenged the will, which left everything to her. 

It’s horrible for the family, that she had to go through that, with her husband just having passed away. 

But her daughter was friends with this barrister. So while I was managing the estate administration, the daughter suggested that the mum uses this barrister to run the litigation with the sons. 

They used this barrister to settle the litigation, which went for about 12 months. And the barrister’s fees were about $400,000. My fees, if I had done similar sort of work, probably would have been about 10% of that.

I know that there are horror stories out there about legal fees. 

But you can find lawyers who don’t gouge. 

You can find lawyers who take the risk, and give you a set fee. Because if I give you a set fee, and something happens, I either re-scope it for you and let you know what the change is, or I bear the risk because I set the fixed-fee. a

Being able to find and hire the right lawyer is so critical. And when someone is grieving after the death of their husband, and their family is falling apart around them because of disputes over the will, it’s so critical to have the right people behind you.

Legally Wise Women runs a course: How to Find and Hire the Right Lawyer.

Legally Wise Women

by Jacqui Brauman Jacqui Brauman No Comments

I have a problem and no one to speak to

Isolation: I think with the lockdown that we have at the moment, it’s highlighting it even more than usual. But I know that when women face a legal issue, firstly, they don’t sometimes recognize that it’s a legal issue and that there is a legal solution. But the main thing is, and the reason why they don’t know that it’s a legal problem is that they don’t talk to anyone about it.

It’s particularly prevalent among women that we keep things to ourselves. 

Maybe it’s because we are ashamed or embarrassed to be in a particular situation, or whether we’re fearful that if we reveal the situation we’re in, we’ll be criticized. 

Or we’re worried it will get back to the other person that we’re in the dispute with.

But for whatever reason, we tend to keep things to ourselves. 

We have such a mental load with other things going on, and this just increases our mental load. 

We keep it to ourselves. We don’t want to burden other people with it.

But that isolation and keeping it to ourselves does worse things for us than if we spoke to someone. 

If we worked out what position we’re in, as early as possible, we’d be in a better position. 

If we didn’t allow the situation to get worse, because we’ve just sat on our problem, we’d be in a better position.

If we were surrounded by a community of women that we knew had gone through similar situations and we knew that we had a safe place where we could trust revealing and talking about some of the things that we were dealing with. 

Sometimes it’s not necessarily even about finding a solution. 

Sometimes it’s just sharing with someone who understands.

by Jacqui Brauman Jacqui Brauman No Comments

How Do You Know If You Can Trust a Lawyer?

How do you know if you can trust a lawyer to do the right thing? (Particularly if you’ve had a bad experience before) 

It comes down to knowing how to hire, find and hire, the right lawyer. 

I’ve had a lot of people come to me, to re-do documents done by another lawyer, because they’ve had a poor experience before. 

For them to trust me after a poor experience, is a big step. 

Particularly, and I’ve seen this for a number of women, they’ve had a Will done with another solicitor and the solicitor has appointed themselves as an executor. 

The last solicitor didn’t explain what the consequences of having a solicitor was as executor was. 

I’ve also seen a solicitor put an extra clause in their Will saying that their executors had to use their law firm to administer the estate, which is actually a clause that is not valid. But those who aren’t given the right advice or don’t know about that, think that they have to follow that clause.

When you’ve had an experience where a solicitor takes advantage of their knowledge or power over you, of course, you’re going to find it difficult to trust the next one that you want to work with. 

But that’s why being able to know how to find and hire the right lawyer is so important. 

Legally Wise Women has a 5-part court: “How to Find and Hire the Right Lawyer”, so you don’t have to worry about a lack of trust, or not trusting a lawyer you choose again.

by Jacqui Brauman Jacqui Brauman No Comments

Being Scared of Legal Fees

We know every two years or so, more than half of women face a legal problem of some kind. 

It could be: 

  • in their business, 
  • a staff issue, 
  • something that they’ve bought that doesn’t work 
  • being chased for money, 
  • a housing problem,
  • having a separation, 

… there’s so many things that women could face

Unfortunately, we also know that less than half of the women who face an issue get professional advice. 

Now there could be lots of reasons for that. 

One of the reasons could be because people are scared about legal fees. They don’t know how it works. They have heard horror stories about finding the wrong solicitor, about legal fees being ginormous and unfortunately it does happen. 

Without knowing how to find a lawyer and how then to engage them, and how then to work out what the legal fees are going to be; you are at risk of that.

Recently we acted for a woman in a separation that went for maybe 18 months or so. In my firm, TBA Law, she had a fixed legal fee. She knew what her fees were going to be. And it was interesting because, over the same period of time, her husband paid 150% more in legal fees than she did.

So knowing some legal fees upfront is really important and it takes that risk away. 

Knowing how to find and hire the right lawyer, and how to have the conversations, and understand how lawyers charge is really important.

Legally Wise Women has a 5-part course, so you can learn exactly how to avoid wasting time and money with the wrong lawyer.

Legally Wise Women

by Jacqui Brauman Jacqui Brauman No Comments

The Wrong Lawyer Could Inflate Your Legal Problem

One of the fears that people have, particularly women, is when they face a legal problem, they think that a lawyer is just going to inflate the legal problem. 

They are worried that the legal problem is going to become bigger than Ben-Hur, and the solicitor will convince them to go to court. 

Yes, there are some solicitors out there who will do that, but there are others who won’t.

There are solicitors that will work with you, and it’s about finding and hiring the right one. 

So I recently acted for a woman who was in a dispute with her brother over farming land that their parents had left to them. My client had stayed on the farm with her husband and they were the farmers, and the brother had actually left.

He either wanted the farm or he wanted to be paid out. But he wanted to be paid out an amount that was way higher than a valuation that we’d had.

Unfortunately, the relationship between them was such that he didn’t discuss it with her first and ran straight away to find a solicitor who was highly litigious.

That solicitor did inflate the situation, and kept the negotiations running for a long time without reason.

Unfortunately, when you can’t cut the parties off at the pass, at the beginning, and try and manage the situation and manage the conversation, the legal problem can blow up bigger than Ben-Hur. 

The key is to manage that very early stage in a different way.

Things can be done differently, and there’s plenty of opportunities for them to be done differently. 

That’s what the Legally Wise Women course “How to Find and Hire the Right Lawyer” will help you understand. 

Many, many lawyers prime their clients immediately for litigation and start setting them up at the beginning.

It doesn’t have to be that way, and it can be managed differently between lawyers as well.

Legally Wise Women

by Jacqui Brauman Jacqui Brauman No Comments

Where do I start?

With legal problems, the first place women usually are is; “I’m stuck.” 

We see so many women who have an issue. They’re not particularly clear if it’s actually a legal problem or not, but then they don’t do much about it. 

Whether they’re stuck because of stress, overwhelm, fear, uncertainty, or just don’t know where to start. 

So they’re stuck, not beginning. 

But realistically, you just need to start somewhere. Just like anything in life, just start. 

The longer you leave things, quite often, the worse the situation can get, and I have seen women who’ve left things for months and months, and the situation has just compounded. 

So the earlier you actually start doing something, the better.

So what do you do? Where do you start? Well, you start by making a little bit of a plan for yourself.

So if you’re just not even sure what sort of situation it is that you’ve got yourself in, or where to begin, just start on Google, like so many other places. So Legally Wise Women also has lots and lots of free, short snippets of video information for you, so there might be some relevant legal information there for you to start.

But basically you need to have a look into; what’s the sort of language I should be using? What sort of matter is this, to even be able to find someone that can help you? And then you can start doing a little bit of research into the area to find out, is there a free service I can use? Is there some kind of dispute resolution? Where do I stand with this? 

So you can do a lot of that information research yourself. There’s a lot of free legal information out there.

It’s just a matter of finding the right stuff. 

At Legally Wise Women, we teach you how to find the right relevant information, and then we also help you find the right lawyer, which might be your next step. 

You might figure out, “Well, I can actually deal with this myself and do it for free,” or you might think, “Okay, well, my next step is I really need some legal advice. I don’t want to engage the lawyer. I just want a one-off appointment to find out where I stand.”

Give yourself a timeframe about how long you will allow yourself to research before taking the next step. 

Give yourself a timeframe to do the research, and then set yourself a timeframe when you’re going to decide to either get legal information, get advice directly from a lawyer, or whether there’s some other process that you can take. 

So Legally Wise Women also offers strategy sessions, not specific legal advice, but certainly a session around where to find the relevant information, and what is your next step.

 

Without going legal

by Jacqui Brauman Jacqui Brauman No Comments

What to Expect at Mediation

Mediations can be run quite a few different ways, and it depends at what stage the mediation is run. 

So early-stage mediation has a lot of benefits to it, and early-stage mediation generally happens before there is any court proceedings. It’s to try and prevent court proceedings, and it can be with or without lawyers.

So in an early-stage mediation, sometimes it’s run like a shuttle, but sometimes not. 

The shuttle form of mediation, a late-stage style of mediation that lawyers are often involved in is a strange sort of hybrid kind of mediation that’s evolved and isn’t the true concept of what mediation should be.

So if you have the opportunity to do an early-stage meditation, it’s highly recommended with the right mediator.

If you’re worried about being in the same room as the other person, usually mediators have the space to be able to have separate breakout rooms. A lot of mediations can now be done online and via Zoom. 

You will have individual time with the mediator yourself. You will have time together with the mediator and the other party. And the mediator really has a lot of flexibility about how to give you time by yourself, and to give you time with them.

Mediation is really about having someone facilitate a discussion between the parties to try and come to a settlement. So the mediator really tries to look at all options available and really discuss the options openly in a facilitated way. 

The mediator’s not there to give advice. 

The mediator’s there to try and smooth the path to a settlement.

Now, late-stage mediation is a very different sort of occurrence. A late-stage mediation is usually because the matter is in court, so there’s proceedings. The parties usually have solicitors already.Courts don’t like to book something in for a trial unless the parties have tried to resolve it first. So generally the court has a compulsory mediation process built in.

Now this is the form of mediation where tensions are probably far higher than an early mediation, and people may have taken firmer positions, and the solicitors are all involved as well. Quite often, then, you end up with a barrister representing you as well. So there ends up being two lawyers for each party, and a mediator is often at this stage a barrister or a solicitor mediator, rather than someone who is not in the legal industry. 

These late-stage mediations have morphed themselves into a shuttle situation where you go along to mediation and the mediation starts as an open forum with everyone in the same room with some initial statements said, but no offers made and very little is done is a joint room generally.

The parties then go into separate rooms, and it’s a shuttle because the mediator is shuttling backwards and forwards, taking offers backwards and forwards. Sometimes options aren’t explored as thoroughly as they might be at early stage, because a lot of solicitors will have thought about options prior and ruled things out. So they’re not generally discussed as openly as they might be, particularly in a joint forum or in an early-stage mediation.

There’s huge benefits for mediation. Most things settle at mediation, either early- or late-stage. I think the figures are up about 95%. So they are quite successful. 

The other thing about mediation is that people who participate in a mediation sign an agreement to say that anything said at the mediation is confidential and can’t be used by either party against the other party further down the line. So it’s all done with the idea that people can talk openly so that they can actually try and resolve things. So that’s another benefit of mediation.

So the earlier parties can participate in mediation, the better. Sometimes people think that it’s a waste of time and money to do a mediation before court proceedings are started. Firstly because they don’t think there’s enough leverage to get the other party to the table to actually have a fruitful discussion, and secondly they think that if the early-stage mediation fails, that it’s money wasted. Both of these reasons aren’t really valid. An early-stage mediation can still narrow issues significantly, and bring up options that might not otherwise have been considered.

There are many services that provide free dispute resolution, such as the Dispute Settlement Centre of Victoria, Consumer Affairs, and some ombudsman services also use a mediation-style approach.

by Jacqui Brauman Jacqui Brauman No Comments

How do I settle a dispute out of court?

There are many ways to settle a dispute out of court. Even the courts encourage you to settle before a trial – most courts have a compulsory late-stage mediation requirement.

Traditionally. many lawyers use going to court to leverage an outcome. They may try to negotiate an outcome directly, but they will often commence proceedings (file an application in a court) to push as resolution if negotiations are not working.

Having proceedings on foot in court can help to bring someone to the table who refuses to negotiate. Also, having a court involved gives you timeframes, and it generally forces people to have a mediation.

But let’s forget the traditional approach.

There is an alternative, and much less direct approach. The alternative, so you can settle a dispute out of court, is much more flexible.

This video is one of the lessons in our 5-part email series on How to Resolve Your Problem Without “Going Legal”:

So methods to use to settle a dispute out of court include:

  • your direct negotiation (without a lawyer). Get some legal advice, and learn to negotiate yourself,
  • early-stage mediation. It doesn’t just have to be all one day – you can have multiple shorter mediations to resolve things over time. This also gives you both time to process the discussions,
  • arbitration. This doesn’t have to be a decision over your whole situation, but bringing in an expert to give you a decision on a particular aspect of your dispute could help move the matter to settling, and
  • collaborative practice. This is a unique facilitated process, where all the professionals you have need to be trained in collaboration. We all agree to work hard to settle the dispute out of court, by signing an agreement that none of us will be involved or benefit from going to court.

Enrol in the full email course to learn the other elements of settling a dispute out of court.

 

Without going legal

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