What is Collaborative Practice

by Jacqui Brauman

What is Collaborative Practice

by Jacqui Brauman

by Jacqui Brauman

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. 

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