sarah keenan, david list and stephen winspear

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Page 1: Sarah Keenan, David List and Stephen Winspear
Page 2: Sarah Keenan, David List and Stephen Winspear

History of Collaborative Practice

Commenced in USA 25 years ago

Stu Webb – veteran family lawyer – war of the roses weary

Page 3: Sarah Keenan, David List and Stephen Winspear

Methods of Dispute Resolution

◦Murder◦Rule of law◦1st Family Law matter

…Today’s Court system

Page 4: Sarah Keenan, David List and Stephen Winspear

History Spread exponentially

around the world Initially just lawyers Initially just family law Evolved into interdisciplinary

teams Different models in different

locations

Page 5: Sarah Keenan, David List and Stephen Winspear

The System

Rigid and positionalLong delays in CourtHigh costs of litigationUncertainty of outcomesStress of adversarial modelDamage to familiesRecidivism

Page 6: Sarah Keenan, David List and Stephen Winspear

Preservation of relationship

Collaboration commenced in family law area

Equally useful where relationships are important eg. Estate disputes, Partnership disputes, Lessor/Lessee

Page 7: Sarah Keenan, David List and Stephen Winspear

Relationship to MediationOverlap with MediationIf parties screened out of Mediation,

or Mediation fails, CP preferable alternative to Court!

If Collaboration fails, Mediator can assist in the process – preferable to Court!

Page 8: Sarah Keenan, David List and Stephen Winspear

What is Collaborative Practice?A non adversarial processFocus on problem solving, interest

and value based negotiationA process specifically designed to

preserve relationshipsA dignified and civilised

approach to resolving issues that arise as a result of the breakdown of a relationship

Page 9: Sarah Keenan, David List and Stephen Winspear

Each party needs to engage a trained Collaborative Solicitor

Collaborative Practitioners are 100% committed to settlement – withdraw if the parties decide to go to Court

Any issues important to the parties are dealt with – not just those that a Court could consider

Creative options explored – not limited to what a Court can order

Features of Collaborative Practice

Page 10: Sarah Keenan, David List and Stephen Winspear

Gathering and sharing information – full disclosure

Joint engagement of teamNo unilateral action – all

steps agreed by all parties in advance

All negotiations take place in joint meetings – no correspondence

Features of Collaborative Practice

Page 11: Sarah Keenan, David List and Stephen Winspear

Parties take into account the goals and interests of all parties, not just their own

Aim for durable and VIABLE outcome

No party can take advantage of any mistake or miscalculation of the other

Emotions and pacing are relevant

Features of Collaborative Practice

Page 12: Sarah Keenan, David List and Stephen Winspear

Unmanaged ConflictModeration

replaced by extremism

Antagonism replaces disagreement

Original concerns replaced with preoccupation with latest insult 12

Emotional Process of Divorce

Page 13: Sarah Keenan, David List and Stephen Winspear

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Emotional Process of Divorce

The old dance practiced for years needs to be replaced with a new dance

Page 14: Sarah Keenan, David List and Stephen Winspear

Increased likelihood of preservation of relationships (personal, business, family)

Minimisation of hostility and conflict

Clients control the process and own the outcomes

Faster resolution

Advantages of Collaborative Practice

Page 15: Sarah Keenan, David List and Stephen Winspear

Maximum flexibility Creative solutions Maximise privacyCost savingsPotential for improvement

of communication, negotiation and problem solving skills - may assist or minimise future conflict

Advantages of Collaborative Practice

Page 16: Sarah Keenan, David List and Stephen Winspear

The Collaborative Practice Process – How does it work?

Determine suitability of client/matterPrepare clients for joint meetingsAssemble a multidisciplinary teamAgree on agenda and process for the first joint

meetingAll substantive matters discussed at joint

meetingsProfessionals brief and debrief with each other

Page 17: Sarah Keenan, David List and Stephen Winspear

How Does it Work: Screening• Serious mental illness• Drugs and alcohol• Domestic violence• Completely unrealistic/inflexible• Bully/victim• Rage and bitterness

Page 18: Sarah Keenan, David List and Stephen Winspear

The Collaborative Team Lawyers, accountants,

financial advisers, child specialists, mental health specialists, conflict coaches

All trained to participate in the Collaborative process - parties/resolution focused

Page 19: Sarah Keenan, David List and Stephen Winspear

Choreography 2. First team briefing3. Agenda4. First 5-way meeting:

settingcontractimmediate issueshomework

Page 20: Sarah Keenan, David List and Stephen Winspear

Choreography (2)5. De-Briefs6. Minutes7. Agenda8. Preparation with client for next meeting:

optionsissues

Page 21: Sarah Keenan, David List and Stephen Winspear

The Collaborative Lawyer:Represents client – not client’s gladiatorHelps client clarify and communicate effectively

about goals, interests, hopes, worries, priorities and values

Advises client about process Puts the law in perspectiveHelps client find creative, comprehensive

and mutually acceptable solutions to problemsPrepares agenda, minutes etc.Prepares legal documents required (settlement

deeds etc.)

Page 22: Sarah Keenan, David List and Stephen Winspear

• Assess needs and issues

• Assess and facilitate pacing

• Facilitate team communication

• Develop strategies for managing emotion

• Mediator• Children's needs • Support clients• Chair joint meetings

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The Mental Health ProfessionalManage the emotional landscape and provide support

Page 23: Sarah Keenan, David List and Stephen Winspear

The Financial Neutral

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• Gather information • Prepare asset register• Educate one or both parties around

finances • Assist in creative option generation • Reality test options being considered • Future projection/budgets

Page 24: Sarah Keenan, David List and Stephen Winspear

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• Neutral source of advice and info• Financial decisions made with open eyes…• Provide time and cost efficiencies through

specialisation• Leverage existing knowledge and tools

• Technical support – income and capital gains tax, establishing capital values, long term asset values, budgeting, structuring

• Painting the Picture – explanatory illustrations, modelling tools, resource libraries

• Network of related professionals to call upon

Financial Neutral

Page 25: Sarah Keenan, David List and Stephen Winspear

Advantages of team approach Recognition that separation is a traumatic

process that is bigger than a legal issueRecognition that parties benefit from

assistance of other professionalsNo one professional can best address all

the legal, social, emotional and financial concerns

Better to have all professionals on the same page rather than working against each other

Page 26: Sarah Keenan, David List and Stephen Winspear

The Child ExpertSeparately interviews the child(ren)Brings the child(ren)’s voice to

CollaborationHelps parents to focus on the best

interests of the child(ren)Collaborates with the rest of the

team

Page 27: Sarah Keenan, David List and Stephen Winspear

Advantage of team approach for clients

One stop shop Cheaper to have appropriate professionals

using with their area of expertise Feel fully supported in process Communication and emotions are integrated New skills learned Teamwork only improves with age! Often can hear news or perspectives from

neutral that would be hard to hear from anyone else

Page 28: Sarah Keenan, David List and Stephen Winspear

Final Comment… whether we like it or not, every encounter that our

clients have with us and with the courts operates in the service of healing or against it; little or nothing that we do with clients enduring so stressful a life passage can be seen as therapeutically neutral. We can choose to ignore the scarring impact of our work as litigating……..lawyers, but that does not make the damage we do less real; it merely makes us wilfully ignorant. (Pauline Tesler)

Page 29: Sarah Keenan, David List and Stephen Winspear

Thank you!

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