A better way to talk

It began in family law, but its approach can be applied to any civil dispute. Practitioners in employment, medical negligence and some areas of private client work are beginning to take an interest. And in a couple of months’ time, Scotland hosts an international conference which, its proponents hope, will encourage others to come and take a look for themselves. What is it?

Collaborative practice is that step beyond other forms of non-court dispute resolution which requires that if the process breaks down, the lawyers withdraw from acting. Clients bind themselves to full disclosure and to engage in a problem-solving approach at a series of four-way meetings, usually three or four. The importance of ongoing relationships after a dispute may have helped its emergence in the family sector, but is a factor in many other areas and the process is a generic one.

Interdisciplinary

The conference, the Fourth (biennial) European Collaborative Law Conference, takes place in the Edinburgh International Conference Centre on 1 and 2 June. Despite its title, the 300 or so delegates will have a global spread, including North America and Australia. “It’s fantastic to have it coming to Scotland,” says Cath Karlin of bto solicitors, who sits on the board of the International Academy of Collaborative Professionals. “It really puts us on the map in the collaborative world and shows we are a pioneering force in the collaborative community. We fought quite hard to get the conference and we’re delighted that we have it.”

So how do you fill two days with collaborative practice? “Dead easy!” she laughs. “People are at different stages, so we are making training available for intermediate and basic level. We also have not just lawyers who work in the collaborative world, we also have mental health and financial professionals, so there will be specific topics for them. And because we work as part of an interdisciplinary team, there will be specific workshops and lectures looking at the team model and how we interact with one another.”

Karlin’s colleagues on the organising committee, Anne Dick and Aileen Low (both of MHD Law), also highlight the last point. As Dick says: “Involving other professionals from financial and counselling backgrounds – many family therapists are from Relationship Scotland – supports the whole process and is constructive and useful to couples going through it, because they get all these skills joined up instead of being at war with one another.”

The advanced training programme described on the IACP website (www.collaborativepractice.com) indicates a now sophisticated field, with some quite nuanced approaches to different types of client. “I think the interpersonal side is particularly important, to have skills in dealing with emotion, to understand negotiation theory,” Dick comments.

Essential elements

It was only in 2004 that the collaborative ideal even reached Scotland (Journal, September 2004, 46). How far has it taken hold? “It’s patchy, depending on the geographic area”, says Karlin. “Glasgow is pretty vibrant; Edinburgh is not bad; Aberdeen is particularly explosive and there’s a core there who have done pretty much nothing but collaborative work.” Aberdeen in fact took off because a relatively small and close-knit group of practitioners decided to buy into the process and now employ it as fully as possible.

What proportion of family cases could it be used in, without other constraints? Karlin suggests over 70% (“not for high-conflict couples or where there has been domestic violence”), though Aberdeen solicitors I met thought 50% a better estimate. “We now have very sophisticated screening and we know who not to involve in the collaborative process”, Karlin explains.

How often does it happen that the solicitor has to withdraw due to the process breaking down? Quite seldom, in fact – single figures percentage-wise, the team estimates. “There’s so much investment in getting it to work from everybody who’s there,” says Dick. Karlin cites the high level of training as a factor: many collaborative practitioners are also trained mediators; in addition, local POD (professional and organisational development) training groups are being set up where practitioners can share experiences and if necessary find a mentor or buddy. “We want this to work, so we all work collaboratively to help our colleagues,” she comments.

What lessons can they offer about what works and what doesn’t? “Avoiding strings of acrimonious correspondence is the main thing for me,” Dick responds, “because that can be so damaging.” Karlin adds: “Also, screening the clients effectively and pulling no punches with the client. You have to make the clients aware that this is not an easy process for them. It’s much easier for them to deal with the traditional negotiation or litigation and hide behind the lawyer. When they have to come to meetings and actually take part, sometimes it’s more difficult for them, coming face to face, or having to make difficult decisions. But the end result is very worthwhile: they get the opportunity to create their own bespoke settlement, which is something you don’t generally get even in a traditional negotiation.”

Anne Dick again: “I think the most difficult thing for the clients is the initial negotiation with themselves about how they want to come out of the dispute. Are they really wanting to make out that they are the victim and that the other person is a bad person? Or do they want to come out of it having made some sense of it and moving on? So I think the important thing is preparation with the client, helping them to see something with another perspective. It’s actually making a real virtue out of necessity for the client, because if they’re going to get an agreed outcome, they have to see it from the other person’s point of view.”

It’s vital also, says Low, that the client doesn’t feel pressurised into taking part.

Wider interest

And its potential? Sometimes it doesn’t happen because the lawyer on the other side hasn’t been trained in the process, but Low believes that problem will reduce with time. Public knowledge too is growing, Karlin adds, particularly among the professional classes: “They will often come in and ask for it. They see it as private; it’s generally very well organised; it fits round a professional person’s diary, and they buy into the fact that they want to have a good divorce, they want to transition and remain relatively friendly with their spouse.

“Clients have increasingly to be made aware of all the process options – kitchen table mediation, collaboration, arbitration, the full gamut, and we’re all pretty much trained in all of them. But I would definitely say that for the majority of people, collaboration is the best way forward. Because in no other process do they get the add-on of the financial and counselling coaches and that level of support, and that is what I think really carries people through to the other end where they have a good outcome.”

As we noted above, practitioners outside the family law field are starting to take an interest. “I think when the wider civil community gets its head around it, which they are slowly doing, it will be very much one of the preferred means of dispute resolution for many people, not just divorcing couples,” Karlin predicts.

Certainly, the Law Society of Scotland is now taking a keen interest and is actively supporting the Edinburgh conference. Karlin claims the event will demonstrate the wider applications of the process to anyone interested. “People in the civil litigation community who do employment work, medical negligence work, private client lawyers, they should really think about coming along, just dipping a toe in, so that they can get a feel for it, and sense the energy.”

And if the team is to be believed, collaborative practice can take job satisfaction to a whole new level. “One of the most wonderful things to come out of it”, Karlin claims, “is not just having the client satisfaction ­– which tends to be huge – it’s the fact of having a very warm relationship with your colleagues. I have got to know lawyers better than I would ever have known them before. The trust is there; because we do the work together we now have friendships that are enduring, and that is now spilling out into the coaches. They come back and say, we just didn’t think that lawyers can be like you – we thought you were horrible scary people!

“It sounds very touchy-feely, but it’s a wonderful thing. We believe in it wholeheartedly; that’s why we promote it. We love the work; it can be extremely difficult and draining, but the result at the end is so worthwhile.”

• For information on the conference see www.consensus-scotland.com (early bird rates open until 23 March)

Getting started

Collaborative practice requires training, but that is open to everybody, says Anne Dick, who is also training convener for Consensus, the collaborative practitioners’ body.

Comprising a total of one and a half days of preparation followed by a two-day course, it can be taken either as a block or in modules spread over a period.

“We’ve made it as easy as possible to train,” Dick adds. “We’ve had the first round this year, but there will be other opportunities, and people can start picking up the modules, which are very transferable into other areas of practice. It’s not that they learn things that are only useful in collaborative practice – I think we’ve all found the skills trainings that we’ve had have been of enormous benefit in any area of dispute resolution.”