Is the collaborative process a contractual one?
…..and should we change the disqualification clause?
I am delighted to be joined by Gemma Hope who is a Director at Family Law Partners, a mediator and experienced Collaborative solicitor. Gemma and I have worked together, on collaborative cases, many times and find that our different personalities and approach really work well for our clients. So Gemma, how do we bind ourselves and our clients to the Collaborative process?
Gemma: We do that by signing up to the Participation Agreement. This is a written document that sets out that the terms and conditions of process. Everyone who signs up to the Participation Agreement commits to working together towards a mutually beneficial outcome. There is a section that clearly sets out some guidance on how best to work to ensure the issues can be addressed in the best possible way and what should be avoided, which can be really helpful for everyone to read through before each collaborative meeting by way of a reminder as to how to make the process as effective as possible. The Participation Agreement also sets out how the collaborative process is confidential and private, that it is without prejudice (except for factual data - as opposed to proposals or information about interests) and in what circumstances documents or information from the process might have to be disclosed. This ensures that there is a safe space for discussions to be had. Part of the commitment when signing up to the Participation Agreement is that the lawyers will not be able to continue to act if the process breaks down. What are your views on that Jo? Do you ever find that puts people off?
Jo: Interestingly, I have never had a client want to avoid the collaborative process because of this clause. They can usually see that the clause creates ‘buy in’ from the all of us. It is my experience that other solicitors will often find a reason not to use the collaborative process. For example, the clients aren’t amicable enough (!), the case is complicated or there are too many emotions. You and I know that none of these reasons are good ones. As we work in a team with family consultants who cans sort most of these ‘difficulties’ out.
Very rarely does the collaborative process not work. I have had a handful of cases that have not managed to sort out all the issues for divorcing or separating couples.
But if this does happen, I am all for a change to the Participation Agreement. I think that experienced practitioners would be able to continue to assist their clients using Arbitration. I think the fear is that if we moved from Collab to something else that the practitioners would become positional and adversarial. I don’t think this is necessarily the case. What do you think Gemma? Could this work out better for clients?
Gemma: I completely agree, I’ve never found signing up to the Participation Agreement puts clients off. I think it is often a real selling point of the process as it shows everyone is committed to trying to reach an agreed outcome. The collaborative process is not just for cases where the clients are amicable. The reality is, in most cases, there will be a level of conflict or disagreement and that is where the collaborative lawyers can add real value due to specialist training in dispute resolution.
Complex cases too are often perfect for a collaborative approach as the lawyers are on hand to advise throughout. Additionally, the process is by its very nature multidisciplinary, so other experts can be called in to assist and sign up to the Participation Agreement. Like you say Jo, when emotions are high family consultants can come on board to help manage that. I don’t know about you but I often find the blocker to reaching an agreement can be an emotional one rather than a legal issue and I feel the collaborative process is much more alive to addressing that than, say, the court process. I do think the ‘buy in’ you get from knowing the lawyers can’t represent you if the case goes to court is important. That really helps focus everyone’s minds and ensures that everyone can be open and honest without the concern that in doing so could give anyone any kind of tactical advantage if the case ended up in court.
That said, I do think there is scope to challenge the total ban of collaborative lawyers from representing clients within the Arbitration process. It might be for instance that the clients reach an agreement on most points but have a discreet issue that they can’t agree on. It can’t be right from the clients’ perspective for that to mean that they then have to start from scratch when it would likely save a lot of time, stress and costs if the collaborative lawyers could assist in presenting the discrete issue to an arbitrator to determine. What are your thoughts on this Jo? Do you think consideration should be given to this aspect of the Participation Agreement (PA) being revised in some way? Perhaps there could still be safeguards in place to address concerns, for instance for parties to the Agreement being able to opt in or out at the start when signing up to the process in relation to arbitration, some conditions around the use of arbitration within the collaborative process and for the training of collaborative lawyer to cover this?
Jo: I love doing these blogs as so many great ideas come up. Yes, we really need to urgently consider and implement a change to the PA that means collaborative lawyers can help their clients move on to arbitration. I don’t think clients worry about some of the ‘rules’ as they just want to get things sorted. I wonder if there are Arbitrators out there who would help us work out how best to move forward with this proposal.
We would need to be, as usual, principled and ethical in the way it is dealt with. I really like the idea of an ‘opt out’ clause for the clients and for us. The clients may not want us or one of us to continue and that could continue to be their right. One of the lawyers may also feel uncomfortable carrying on and they must be able to ‘opt out’ too. We would need to think about what would happen if one lawyer wanted to withdraw, would that necessarily mean the other lawyer is ‘out’ too?
We could seek to extend ‘The Certainty Project’ to give the clients a structure work within. The Certainty Project being where clients bind themselves to continue to Arbitration should the collaborative process not sort everything out.
Shall we ask the collaborative lawyers and Arbitrators out there discuss, debate and decide?
Gemma: Principles and ethics surely have to be the driving force behind dispute resolution processes and the rules need to adapt accordingly to meet the needs, wants and expectations of clients. That is a good point about what would happen if one lawyer wanted to withdraw and whether that means the other would have to as well. Encompassing the collaborative process within The Certainty Project seems like a good way forward, subject to addressing the current issues with the Participation Agreement. I’d be really interested to know what other collaborative lawyers and arbitrators think.