AACP thanks our platinum, gold, and silver corporate members:
AUSTRALIAN ASSOCIATION OF COLLABORATIVE PROFESSIONALS
Submission to the ALRC Enquiry into the Family Law System
Australian Association of Collaborative Practitioners (AACP)
P.O Box 3301
East Perth WA 6892
Phone 08 92280811 (Secretary)
Table of Contents
Introduction and Collaborative Overview…………………………………………………3
Basis of Submission 3
What is Collaborative Practice 5
AACP Board 7
Brief History of Collaborative Practice 7
Collaborative Practice in Australia 8
Research Papers, Surveys and Australian Family Law Council Report to the Attorney General 13
Family Law Council Report to the Attorney General of Australia on Collaborative Practice – December 2006 13
ALRC SUBMISSIONS PAPER – QUESTIONS 17
Objectives and principles 17
The role and objectives of the modern family law system 17
Principles guiding redevelopment of the family law system 17
Access and engagement 18
Improving access to information about family law and family law related services 18
Improving access to the family law system for rural, regional and remote individuals 18
Changes to the family law system to reduce client costs in resolving family dispute 19
Resolution and adjudication processes 20
Changes to court processes to facilitate timely and cost-effective dispute resolution 20
Diverting litigation to other dispute resolution processes or services 20
Modifying current dispute resolution processes to provide low-cost options for resolving small property matters 20
Improved court support for parties experiencing family violence or abuse 21
Legally-assisted family dispute resolution in family violence or abuse matters 22
Misuse of process as a form of abuse in the family law system 22
Development or expansion of non-adjudicative dispute resolution processes to resolve disputes in a timely and cost-effective way 22
Bibliography Extracted from 2007 Family Law Council Report to the Attorney General 25
INTRODUCTION & COLLABORATIVE OVERVIEW
Basis of Submission
This submission addresses the areas of enquiry of the Commission only in so far as Interdisciplinary Collaborative Practice might provide information or solutions to the areas of enquiry.
It is submitted that the breakdown of marriage and de facto relationships and the arrangements for children, which are currently covered by our Family Law system, are relationships and issues that have legal, social and financial obligations and consequences.
In few other areas of the legal system is this the case.
The Family Court system has recognised this diversity of relationships and consequences over the years since its creation in 1975.
The Court, for example, provides for social science expertise to be provided to the judge as decision maker in the form of Family Reports. It would be unusual in present-day practice for a case involving arrangements for the children not to have commissioned a report from a psychologist or social worker lending to the judge their specific area of expertise relevant to the decisions to be made in relation to a child.
Similarly, but not extensively, the input of, generally neutral, financial specialists is either ordered by the Judge or voluntarily obtained by the parties to provide that assistance and expertise to the Judge in their decision-making power.
The same cannot be said, in most circumstances, for the current dispute resolution range of options available to the public.
Family Dispute Resolution, that process which parties are required to undertake prior to commencing proceedings in relation to children’s issues, is undertaken by those qualified as Family Dispute Resolution Practitioners.
The qualifications to obtain that standing as a Family Dispute Resolution Practitioner, contains no professional prequalification. Any member of the public can undertake a Family Dispute Resolution Practitioner course, generally 8 days in length.
In most of the government based Family Dispute Resolution services, such as those delivered by the Family Dispute Resolution Centres, by Relationships Australia, by Centre Care and similar organisations, legal representation at the Family Dispute Resolution mediation sessions are not encouraged. In some cases it is prohibited.
This leaves parties attending mediation without the opportunity of obtaining legal advice throughout the negotiation process to inform the options they generate and decisions they make.
This practice ignores the fact that parties to a dispute about the children have legal rights and obligations and their decisions have legal, as well as social, consequences.
In relation to Financial disputes, mediation, or some form of it, is a requirement as parties travel through Family Court system, if they have not already attended mediation prior to instituting proceedings.
Almost universally, mediation is attended as a half day, or one day event and takes place after each side has collated their own information, exchanged disclosure documents through a formal and adversarial process and obtain valuations, usually by a neutral joint expert and delivered in the form of a written report with limited opportunity for clarification to be obtained in a meaningful, expeditious or joint way.
Interdisciplinary Collaborative Practice is designed around at least two fundamental principles-
1. Parties who find themselves in a Family Law dispute are involved in a dispute that has legal, social and financial implications, obligations and consequences and all three need to be addressed in generating options for solutions and coming to a resolution. Parties are best served in the resolution process by having access to expertise from each of the legal, social and financial professions (as might be appropriate to their particular matter) in both the information gathering stage and the resolution phase;
2. The interests, goals and concerns of the parties themselves in the resolution of their Family Law matter extend beyond the rigid legal framework of the Family Law Act. Parties therefore benefit from a dispute resolution process that is founded in Interest Based Negotiation. Such founding in Interest Based Negotiation does not ignore the parties’ legal rights and obligations but adds to the consideration of those legal rights and obligations, the social and financial impacts, goals and interests of the parties attempting to restructure the entirety of their lives following relationship breakdown, not just the legal aspect of the relationship.
Interdisciplinary Collaborative Practice addresses those two fundamentals in its process in the following way:_
1. Parties are assisted by a team of professionals from each of the legal, social science and financial disciplines, chosen according to the needs of the parties and the ambit of their dispute including:-
(a) A lawyer for each party who represents that party and retains their professional obligation as the advocate for that particular party;
(b) Financial professional/s are engaged as neutrals to assist the parties in the information gathering process in a neutral way, taking away from the lawyers the task of financial information gathering which does not truly sit within the lawyers’ skill set and which can be done by the financial professional in a neutral, non-adversarial way. Financial Neutrals are then involved in the option generating and testing phases of the resolution process – giving parties some future focussed examples of how the options being considered might impact their lives;
(c) the involvement of social scientists in various aspects, as a representative for the Child, to carry out a role similar to that of a Family Report Writer in the Court system, to provide counselling or parental education and the like to each of the parties, either as a neutral basis or individually, to assist parties to stay future focussed and to chair meetings where that might be appropriate leaving the lawyers and other professionals free to undertake their respective roles during the meeting process.
Because Interdisciplinary Collaborative Process provides the parties with the input of each of the three professionals throughout the entirety of the matter, including throughout the information gathering phase, and because much of it is done in a joint and neutral way, once parties arrive at the option generation and resolution phase of a Collaborative negotiation they each have a deep understanding of the legal, social and financial issues, obligations, rights involved and are better able to generate options that meet the goals and interests of each of them and their family, in each of those areas.
The clients are assisted to genuinely find their own solutions which reflect all three areas presented in any family law dispute and in owning the solutions have much better prospects of that solution being a durable one and one not subject to further litigation.
What is Collaborative Practice
An overview of collaborative practices can most simply be provided by quoting Pauline Tesler in her seminal text on the subject, “Collaborative Law” (2001 American bar Association).
“Described simply, the collaborative law process consists of two parties and their respective lawyers who sign a binding stipulation defining the scope and the sole purpose of the lawyers representation: to help the parties engage in creative problem-solving aimed at reaching a negotiated agreement that meets the legitimate needs of both parties.
In the collaborative law process, the parties agree that no one will threaten or engage in litigation to coerce compromises. The parties retain a right of access to the courts, but if either party does resort to the courts for dispute resolution, both lawyers are automatically disqualified from further representation of either of the parties against the other. All experts are retained jointly within the collaborative law model and are similarly disqualified if the process breaks down. During the process, although the lawyers remain advocates for their respective clients within all bounds of professional responsibility, they share a formal and binding commitment to keep the process honest, respectful, and productive on both sides………
……….The hallmarks of the process are:
• Full, voluntary, early discovery disclosures.
• Acceptance by the parties of the highest fiduciary duties toward one another, whether imposed by state law or not.
• Voluntary acceptance, a priori, of settlement as the goal and respectful, fully participatory process as the means.
• Transparency of process.
• Joint retention of neutral experts.
• Commitment to meeting the legitimate goals of both parties if at all possible.
• Avoidance of even the threat of litigation.
• Disqualification of all lawyers and experts from participation in any legal proceedings between the parties outside the collaborative law process.
• Four-way settlement meetings as the principal means by which negotiations and communications take place.
Like mediation, collaborative law utilises skilled dispute-resolution professionals who are committed to helping parties reach personally-tailored solutions to divorce-related disputes. Like mediation, collaborative law offers more control, more privacy, customised results, the likelihood of greater compliers, and (as best) a more civilised process than can be found in the divorce courts. Unlike mediators, however, collaborative lawyers function as active legal advisers and negotiators alongside the clients at the centre of the dispute-resolution process, rather than on the sidelines, as is generally the case in family law mediation’s.”
Since Pauline Tesler wrote her seminal text on a Collaborative Law in 2001, the process has matured and grown into one that incorporates social scientists and financial professionals into the process described by Ms Tesler above as “Collaborative Law” and has now become known as “Interdisciplinary Collaborative Practice”.
All of Ms Tesler’s observations about the nature of the Collaborative Law still apply to the, matured and expanded, Interdisciplinary Collaborative Practice.
AACP is a not-for-profit public company limited by guarantee which is established to be, and to continue as, a charity.
The principal purpose for which the company is established is to promote the use and development of capital Interdisciplinary cCollaborative Practice as an alternative dispute resolution process to resolve legal disputes respectfully, constructively and without the recourse to litigation by:-
1. Educating the Australian community, legal, mental health, financial and other professionals and institutions about the benefit of using Collaborative Practice to resolve family law, civil and other disputes; and
2. Advocating to Governments (Central and State), Courts and other institutions and stakeholders about how Collaborative Practice can and should be used to change the nature and process of dispute resolution.
The Board of AACP is constituted as follows:-
1. Chairperson David List (Psychologist, Victoria)
2. Vice-Chair Cassandra Pullos (Lawyer, Queensland)
3. Treasurer Sue Abrams (Lawyer, New South Wales)
4. Secretary Penny Keeley (Lawyer, Western Australia)
5. Board Members:-
Freda Wigan (Lawyer, Queensland)
David Roberts (Relationships Australia, New South Wales)
Caroline Counsel (Lawyer, Victoria)
Kay Feeney (Lawyer, Queensland)
Julie Gray (Financial Planner, Victoria).
Brief History of Collaborative Practice
A history of Collaborative Practice (up to 2007) is canvassed in the 2007 Family Law Council Report to the Attorney General., Iit sets out in greater detail the development of Collaborative practice up to 2007 – we have provided a very brief summary of its development internationally and in Australia here,; whilst shorter on detail it also attempts to bring the history up to date in 2018.
The dispute resolution process known as “Collaborative Practice” was first developed in the United States in 1990 by Minneapolis lawyer Stu Webb.
18 years later, Collaborative Practice is an accepted method of dispute resolution throughout Canada and North America (with, in the USA alone, 8,000 to 10,000 lawyers having been trained, along with thousands more family and financial consultants. Footnote www.BNPlaw.com.au/PDF/collaborative-C LE-paper-07-03-12. PDF).
The IACP, International Academy of Collaborative Professionals, is based in the USA and is the peak international body for collaborative professionals, lawyers, social scientists and financial professionals. The IACP has in the order of 5,000 members from all states of the USA and 24 countries.
Interdisciplinary Collaborative Practice is now practised in Europe in England, Wales, Northern Ireland, Scotland, Eire, Netherlands, Germany, France, Austria, Czech Republic and Switzerland. It practised otherwise in Israel, Kenya and Uganda. In Scotland the peak body is Consensus and in England the peak body is Resolution. It is reported that 1,250 UK family lawyers have trained in ICP since 2003.
In the South East Asian area, Interdisciplinary Collaborative Practice is practised in Hong Kong, Singapore, New Zealand and Australia.
In the USA the practice of Interdisciplinary Collaborative Practice has received legislative recognition in the form of the Uniform Collaborative Law Act which has been adopted in at least 16 states of the USA.
It has also received judicial support from the UK in the form of agreements reached through collaborative practice being “fast tracked” for acceptance by the Courts leading to Orders being made more quickly.
Collaborative Practice in Australia
Collaborative Practice was introduced to Australia in 2003 when Histhe his Honour Justice Robert Benjamin, then the President of the Law Society of New South Wales, returned to Australia from attending the ABA conference, keen to introreduce the legal profession to Collaborative Practice. Footnote low pitch LOP ICH lawyers.com.au
In 2005, Stu Webb, the founder of Collaborative Practice, conducted a collaborative training in Canberra and in New South Wales at UTS.
In 2006, three Queensland lawyers travelled to Seattle, Washington to train with co-founder of IACP, Pauline Tesler and then founded what was then called Queensland Collaborative Law (now QACP, Queensland Association of Collaborative Practitioners).
International trainers, including IACP’s co-founder Pauline Tesler, were first brought to Australia to provide training to a core group of lawyers, social scientists and financial professionals.
Australian professionals then formed training groups and now there are at least 5 groups of trainers around the country, including one full interdisciplinary training team based in QLD, providing training to lawyers, social scientists and financial professionals. One of those trainers, Dr Anne Purcell, has been selected to sit on the IACP Training faculty and a number of the Australian trainers, including Dr Purcell have delivered training internationally.
State based organisations and practice groups grew throughout Australia with now between approximately 500 and 600 lawyers, social scientists and financial professionals having been trained in Collaborative Practice and being members of either or both State based organisations and practice groups.
A summary of those organisations and practice groups, providing either numbers taken from the websites of the organisations or from data collected directly, is set out in the table below:
Name of body Structure Website Number of members Trainers
Collaborative Practice Canberra Practice group 32 members
New South Wales
Collaborative Professionals NSW Inc NSW State Body
Incorporated association www.collaborativeprofessionals.nsw.org.au
13 social scientists
8 financial advisors
Jackie Jones (lawyer)
Nigel Nichols (lawyer)
David Roberts (Practice Leader at relationships Australia)
interdisciplinary-collaborative-practice-course-and-masterclass 30.6.18 and 11.8.18
ICP Practice Group Practice Group David Roberts [email protected]
Project Officer (1);
Clinical Supervisor (1);
Financial Specialists (3)
Social Scientists (8)
Greater Sydney Collaborative Family Lawyers
Practice group www.divorcewithoutcourts.com.au
8 mental health professionals
10 financial professionals
Central Sydney Collaborative Forum Practice group www.sydneycollablaw.com.au
4 financial professionals
Northern Sydney Collaborative Family Lawyers
Practice group www.nsydcollab.com
3 social scientists
2 financial professionals
Southern Highlands Collaborative Lawyers Practice group 8 members
Collaborative Family Lawyers Illawarra Shoalhaven
Practice group 16 members (lawyers)
Note whilst mention is made of other specialist advisors – no individual professionals are listed on the website.
Macarthur Collaborative Law Group
Practice group 4 members (lawyers)
Bathurst Collaborative Family Lawyers Practice group 2 members (lawyers)
Sydney Collaborative Lawyers Practice group
1 member (lawyer)
Central North Shore Collaborative Practice Group Practice group 3 members (lawyers)
Queensland Association of Collaborative Practice (QACP) QLD State Body
Incorporated association www.qacp.org.au
8 social scientists
23 financial professionals) QACP current and past events and training
2 training teams:
1. Anne Purcell (social scientist)
John Thynne (financial professional)
Cassandra Pullos (lawyer);
2. Clarissa Rayward (lawyer)
Anne Marie Rice
intro & advanced-collaborative training 2018
Brisbane Practice Group (including North Brisbane) Practice group 20 members
2 social scientists
3 financial professionals
Cairns Practice Group Practice group 20 members
Gold Coast Practice Group Practice group 32 members
6 social scientists
1 law student)
Townsville Practice Group Practice group 15 members
4 social scientists
Toowoomba Practice Group Practice group 20 members
2 financial professionals
8 social scientists)
Resolution SA Practice group 6 members
1 financial professional Trainers: Adelaide Collaborative
Centre comprising of:
1. Bev Clarke (lawyer)
2. Garth Craig
3. Rachel Jolly
4. Christopher Swan (lawyer)
Collaborative training SA – introductory
Adelaide Collaborative Practice Group
Practice group 10 members
2 social scientists
Relationships Australia South Australia Practice Group The website rasa.org.au lists members who form part of their practice group.
4 financial neutrals
Collaborative Alliance Tasmania (CAT) Practice group www.collaborativealliancetas.com
1 social scientist
1 financial professional
Victorian Association of Collaborative Professionals (VACP)
VIC State Organisation
Incorporated association www.viccollab.com.au
Mailing list comprises of 100 subscribers Monash University
Law Institute of Victoria
LIV Collaborative Practice Section of the Law Institute of Victoria Executive committee of the Law Institute of Victoria A search of the LIV website of ‘Collaborative Practice’ results in 796 results. Note that this list includes lawyers not collaboratively trained or practicing members.
Collaborative Professionals WA (incorporated) Peak body & Practice group www.collaborativeprofessionalswa.com.au
6 financial professionals
5 social scientists N/A
Research Papers, Surveys and Australian Family Law Council Report to the Attorney General
In 2009 IACP undertook a major research paper into Collaborative Practice generally, issues of cost, most common reason for termination of the process, client experience and other issues (see IACP Research 2009 Forum Article that was presented at the 2009 IACP Forum).
In 2010 IACP released a client experience survey IACP Client Experience Survey and Professional and Practice survey IACP Professional Practice Survey
In 2010 IACP also released its major practice survey of Collaborative Practice undertaken with the assistance of Crescent Inc IACP Practice Survey – Crescent Inc.
In the 2010 study 933 cases were studied over 4 years and statistics gathered to review the collaborative experience both for practitioners and parties. Some findings included:
a) 86% of the cases settled, although a high percentage were rated by the practitioners as difficult or very difficult cases; and
b) 93% of the cases were completed in 18 months and most were finished within 9 months.
Family Law Council Report to the Attorney General of Australia on Collaborative Practice – December 2006
In December 2006 the Family Law Council released a report to the Attorney General in relation to Collaborative Practice in Family Law, a report of consisting of some 104 pages under the following headings:-
2. What is collaborative law?
3. Growth of Collaborative Practice
4. Collaborative law in Australia
5. Collaborative Practice and the new family law system
6. Collaborative law and legislative change
7. Collaborative law and court processes
8. Collaborative law and the legal aid system
9. Limitations of Collaborative Practice
AACP commends to this Commission of Enquiry that 2007 report of the Family Law Council to the Attorney General.
The report can be found at 2007 Family Law Council Report to the Attorney General.
The report made 8 recommendations, the first two of which have been completed and the remaining 6 remain to be done.
It is the respectful submission of AACP that these remaining three 6 recommendations should be adopted by this Ccommission of Eenquiry.
The recommendations are contained in the executive summary commencing at page 4 of the report.
The recommendations still outstanding to be actioned can be summarised as follows:-
The regulations referred to in section 60I(8)(aa) (aa) of the Family Law Act 1975 should include a provision that when deciding whether to grant a certificate for the purposes of this section a family dispute resolution practitioner may have regard to a person’s participation in a collaborative process.
The Law Council of Australia should consider developing and disseminating information about Collaborative Practice and lists of collaborative practitioners to Family Relationship Centres and community based service providers of family dispute resolution.
The Family Law Act 1975 should be amended to provide confidentiality of communications in the collaborative process similar to the protection is provided to communications made in family dispute resolution by sections 10H and 10J of the Act
The Family Law Act 1975 should be amended to provide for courts exercising family law jurisdiction to have jurisdiction in relation to enforcement of collaborative contracts concerning family law disputes.
Courts exercising jurisdiction under the Family Law Act 1975 should match those cases where proceedings have been commenced and the parties wish to undertake a collaborative process, so that priority in the allocation of a hearing date is not lost if a complete resolution of the dispute is not achieved.
National Legal Aid should monitor developments in Collaborative Practice.
A Literary Review has not been separately undertaken for the purposes of this submission. The Commission is referred to the extensive Bibliography that appears at pages 61 – 66 of the 2007 Family Law Council Report to the Attorney General extracted and attached to this submission, which provides a comprehensive review of the literature available in relation to Collaborative Practice up to the date of the release of the report in December 2006.
If required AACP can undertake a full Literary Review from 2007 to the current date.
The commission is referred to the studies referenced above.
ALRC SUBMISSIONS PAPER – QUESTIONS
Submissions made by AACP to the Questions put by the Commission as relevant to Interdisciplinary Collaborative Practice.
Objectives and principles
The role and objectives of the modern family law system
Question 1 What should be the role and objectives of the modern family law system?
The modern family law system needs to recognise, and incorporate into its role and objectives, the goals and interests of its end users, the clients, including, not only the resolution of their legal dispute and consideration of their legal rights and obligations, but also the restructuring of their family and personal lives which carries with it social and financial rights, obligations and consequences that also require consideration and resolution if durable outcomes are to be provided to clients navigating the modern family law system.
Principles guiding redevelopment of the family law system
Question 2 What principles should guide any redevelopment of the family law system?
1. That the primary role of the Family Court is to provide judicial officers to make decisions for those litigants who cannot reach resolution themselves and to make those decisions in a timely manner after having had the opportunity to give full and proper consideration to all of the evidence – whether that determination is made on an interim or a final basis.
2. That dispute resolution services, other than litigation, should be delivered separately to the court system and not by judicial officers referring parties, who have come to court for a decision to resolve the conflict, out of the courtroom for further negotiations when that negotiation has not, to the point of hearing, resulted in a resolution. If parties are at Court they need to be given a hearing.
3. That parties’ disputes are complex in their nature arising primarily out of the relationship that has broken down being one that consists of legal, social and financial rights, obligations, responsibilities and consequences and that deep, durable resolution needs to involve a consideration of all of those areas of clients’ lives.
4. That if the widest suite of dispute resolution processes are available to clients outside the court system, and have the support and understanding of judicial offices, that dispute resolution process should take place prior to parties approaching the court for judicial decision-making.
Access and engagement
Improving access to information about family law and family law related services
Question 3 In what ways could access to information about family law and family law related services, including family violence services, be improved?
1. The Family Court websites could provide a list of dispute resolution processes, including Interdisciplinary Collaborative Practice, together with links to the various organisations offering those services;
2. Judicial officers could be educated in the various forms of alternate dispute resolution processes available to parties, and enabling them to identify, when parties appear before them, which process might be appropriate to those parties. Such referrals should be made only as an adjunct to a judicial decision, not in place of one.
3. Brochures and other resources and materials should be available at each client point of contact with the Family Court, not only advising clients of dispute resolution processes, but also providing them with links to the resources available to deliver those processes to the clients.
Improving access to the family law system for rural, regional and remote individuals
Question 9 How can the accessibility of the family law system be improved for people living in rural, regional and remote areas of Australia?
Interdisciplinary Collaborative Practice can be delivered via Skype and other conferencing facilities enable that process to be delivered into rural, regional and remote areas of Australia.
Collaborative practitioners throughout Australia have already delivered Interdisciplinary Collaborative Practice services to clients both in the rural and regional areas of Australia and internationally, some in cases where the professionals and the clients will never meet in person.
The anecdotal evidence from those having undertaken those cases is a good level of resolution and high satisfaction rate amongst the clients have taken advantage of that service.
Changes to the family law system to reduce client costs in resolving family dispute
Question 10 What changes could be made to the family law system, including to the provision of legal services and private reports, to reduce the cost to clients of resolving family disputes?
• Interdisciplinary Collaborative Practice includes the engagement of private reports, both financial and child related, undertaken by professionals engaged on a neutral basis. Whilst the cost to clients of those reports in terms of the dollar cost payable for the preparation of those reports does not differ from those reports obtained within the Court system, the value of those reports to the clients is greatly enhanced through the Interdisciplinary Collaborative Process.
• Through the Interdisciplinary Collaborative Process, the authors of the reports attend a joint meeting of the clients, their lawyers and any other relevant professionals, to deliver the report in person, as well as in writing. The author of the report is available, in person, to explain the concepts, assumptions, factual backgrounds and conclusions and to take and answer questions from both clients and professionals alike in a joint setting enabling all parties and their advisors to truly gain a deeper understanding of the report and its recommendations.
The report then delivers both an educative and an evidentiary and conclusion based purpose.
The deep mistrust of reports delivered in the adversarial system can be addressed, minimised and, in most cases, removed altogether, to be replaced with deep understanding and acceptance of the conclusions.
• The requirement of the Collaborative contract excluding experts from giving evidence in later litigation can be waived with the consent of the parties. Whilst full agreement might not always be able to be reached through the Collaborative process, agreement on the valuations or recommendations contained in reports commissioned during the process may well be agreed upon and in those circumstances be available in any subsequent litigation undertaken to have the narrowed issues determined.
Resolution and adjudication processes
Changes to court processes to facilitate timely and cost-effective dispute resolution
Question 20 What changes to court processes could be made to facilitate the timely and cost-effective resolution of family law disputes?
In the context of integrating collaborative practice into the Family Law System, it is proposed that, in order to facilitate timely and cost-effective resolution of family law disputes that have gone through the collaborative process but not settled to the extent that they still require judicial determination, either in whole or in part, it is proposed:-
•1 Parties who have completed a collaborative process be given priority in the allocation of trial dates;
1.2 Parties who have undertaken a collaborative process be excused from undertaking any further alternative dispute resolution prior to being allocated trial dates.
2.3 Parties who come to the court seeking urgent listing dates, either on an interim or final basis, after involvement in a collaborative practice negotiation, be allocated those urgent dates as a matter of priority.
Diverting litigation to other dispute resolution processes or services
Question 21 Should courts provide greater opportunities for parties involved in litigation to be diverted to other dispute resolution processes or services to facilitate earlier resolution of disputes?
• It is submitted that the court, and court officers, should have sufficient knowledge of the collaborative process to recommend that process to couples where it appears appropriate.
• It is not recommended that parties be directed into the collaborative process, which should always be a process entered into voluntarily by the parties.
• By providing the incentives proposed in the answer to question 20 to parties who have undergone a collaborative negotiation process, it is anticipated that parties will then have some incentive to be diverted into that process to facilitate early resolution of their dispute.
Modifying current dispute resolution processes to provide low-cost options for resolving small property matters
Question 22 How can current dispute resolution processes be modified to provide effective low-cost options for resolving small property matters?
• The collaborative process can be modified to suit each individual client’s requirements, including to enable it to provide effective low-cost options for resolving small property matters.
• Such small pool property matters will probably, for example, be operated with the minimum number of professionals involved for the minimum amount of time.
• IACP has undertaken studies which can be obtained and provided to the commission if required, into specific low-cost models.
• The design of low-cost collaborative models for resolving small property matters is an issue that can be addressed further by AACP in its role as the national peak body for collaborative practice.
• Options developed in the past include a very limited number of meetings, of limited duration, with information gathering outsourced.
Improved court support for parties experiencing family violence or abuse
Question 23 How can parties who have experienced family violence or abuse be better supported at court?
• This question is specifically directed at better support for parties at court where those parties have experienced family violence or abuse., i It is a recognised by the collaborative community that the question of whether the collaborative process is suitable where there have been allegations or occasions of family violence or abuse, is one that is often asked and needs answering.
• Whilst the existence of family violence creates a layer of complexity in a collaborative case, it creates that layer of complexity in whatever dispute resolution process is undertaken in those circumstances.
• The collaborative process is uniquely placed to provide appropriate professional support to the victim of family violence or abuse through the services of the social scientists available to be engaged in the collaborative team.
• All members of a collaborative team are trained to identify issues of family violence or abuse and the related issues of power imbalance. Once those issues are identified, it is the role of the team to discuss and agree on the appropriate professional intervention required to enable the collaborative negotiation to continue in a safe and appropriate manner. The collaborative process can be uniquely designed for each client’s individual needs in those circumstances.
Legally-assisted family dispute resolution in family violence or abuse matters
Question 24 Should legally-assisted family dispute resolution processes play a greater role in the resolution of disputes involving family violence or abuse?
• With the changes submitted in these submissions to allow practitioners involved in a collaborative matter to issue a section 60I certificate, a collaborative process can provide the legally-assisted family dispute resolution process available in the resolution of disputes involving family violence or abuse.
• The unique advantages of the collaborative process being used in such circumstances have been outlined in our response to question 23 above. Primarily, that advantage is that parties have the availability of support, not only from legal advisers but from appropriately qualified social scientists all the way through the collaborative negotiation, and not limited to only the one or two sessions of family dispute resolution mediation offered in the usual model of FDR.
Misuse of process as a form of abuse in the family law system
Question 25 How should the family law system address misuse of process as a form of abuse in family law matters?
• The issue of misuse of process in the collaborative context is often raised, particularly in the context of one party entering into the collaborative process in bad faith for the purposes, perhaps, of either maintaining engagement with the other spouse with no real intent to reach agreement or to “run the other spouse out of money”, a strategy often adopted in the adversarial process.
• The collaborative process offers the opportunity to screen out clients with those misuse of process intentions in the initial interview and selection process.
• Once in the collaborative process, the collaborative professionals have the opportunity to work with the spouse likely use the process as a form of abuse by way of the skills of the team, including both the lawyers and social scientists. Many, but certainly not all, attempts at misuse of process can be diverted, using the skills of the collaborative practitioners, in taking both parties back to their interests and refocusing them on future-focused problem-solving and reality testing of outcomes.
Development or expansion of non-adjudicative dispute resolution processes to resolve disputes in a timely and cost-effective way
Question 26 In what ways could non-adjudicative dispute resolution processes, such as family dispute resolution and conciliation, be developed or expanded to better support families to resolve disputes in a timely and cost-effective way?
• It is submitted by AACP that the primary way in which non-adjudicative dispute resolution processes can be developed or expanded to better support families to resolve disputes in a timely and cost-effective way, is by the adoption of Interdisciplinary Collaborative Practice as a primary source of family dispute resolution.
• We refer the Ccommission to the research papers, surveys and Australian Family Law Council Report to the Attorney General, summarised at page 14 and following of this paper, in relation to the illustrated advantages of Interdisciplinary Collaborative Practice as a primary method of family dispute resolution. In that regard, we quote again below the summary of the 2010 study of 933 cases undertaken by the IACP over a four-year period, those findings included:
1.1 86% of the cases settled, although a high percentage were rated by practitioners as difficult or very difficult cases; and
1.2 93% of the cases were completed in 18 months and most were finished within 9 months;
1.3 AACP also respectfully recommends to the cCommission the conclusions of the Family Law Council’s recommendations to the Aattorney Ggeneral in 2007, at page 59 of that report, summarised below as follows:-
10.1… Council believes collaborative practice to be a valuable addition to the range of dispute resolution options available, particularly in relation to property matters.
10.2 Collaborative practitioners have been practising in the United States and Canada for at least 15 years, and there seems to be an acceptance of the practice in the judiciariesy’s of those countries. In Australia, there is a growing body of enthusiastic practitioners, together with anecdotal reports of high client satisfaction. More research should be done to evaluate collaborative law as a dispute resolution option. [The Commission is referred to the 2010 IACP report referenced earlier herein in relation to that further research which has now been undertaken].
10.3 In the legal aid context, aspects of the collaborative model are already in place in the Legal Aid conferencing program, although this program has been developed independently of collaborative law. At present, it does not appear to Council that are fully articulated collaborative model can be applied in the Australian Legal Aid context. …… Council has recommended that National Legal Aid monitor developments in collaborative practice.
10.4 The collaborative practice model can be adapted to the individual requirements of parties in dispute. Independent experts including financial, relationship and child experts can be brought into the process in accordance with parties’ requirements and means. This aspect of collaborative practice will make it an attractive option in many cases where parties have the means to engage such a experts. Where parties have been able to access such services, it is appropriate in Council’s view that this be taken into consideration in the event that collaboration fails and parties wish to commence litigation.……
10.5 In cases where the collaborative process works well, it provides significant advantages to litigation. In common with other dispute resolution models such as mediation, it offers parties the opportunity to manage both the process and outcome of dispute resolution. It also offers parties the support of traditional legal advocacy, with the difference that legal advisers focus exclusively on a negotiated outcome.
10.6 Collaborative practice fits well with the new direction in family law marked by the 2006 Family Law Reforms. In common with those reforms, it focuses on parties reaching their own solutions in an atmosphere which avoids the negative consequences of the adversarial court system. ……The legislative changes proposed in recommendations 3, 5, 6 and 7 are aimed at placing collaborative practice on an equal footing with other non-litigious dispute resolution processes.
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