NEWS, VIDEOS, INFORMATION AND TESTIMONIALS

Collaborative divorce law - Introduction:

Collaborative law is a new and revolutionary way to resolve disputes. It uses an interest-based negotiation model where parties and their Collaborative Practice attorneys want to resolve a dispute without going to court.

They work towards a negotiated interest based resolution. Collaborative law is a non-adversarial process and aims to remove the disputed matter from the litigious court room. This process is a commitment to honesty, mutual respect and dignity. 

Collaborative law recognises the emotional issues that exists in all disputes and which can not be addressed by the adversarial court system.

2.    ORIGIN OF COLLABORATIVE LAW

The practice of Collaborative law started some twenty years ago when Stuart Webb, a Minneapolis family attorney, became “fed up” with the destructive effects of divorce litigation and decided to leave the courtroom for good. He asked the question, “what would happen if attorneys focused their talents and attention on settlement instead of trial” (Webb, S. 1996:26-28). 

Webb felt that there had to be a better way for parents or parties to deal with these important decisions in their lives instead of going to court. Webb shared his thoughts with his colleagues and a judge. Slowly but surely they started to develop a process of “working together”.

On 14 February 1990 Webb wrote to a Minnesota Supreme Court Judge, AM Keith, that according to him he observed often in the course of negotiating a settlement with the opposing side when “a climate of positive energy” existed, creative alternatives were presented. The benefit, he found, was two-fold;

  1. all parties involved were able to contribute to the final settlement and;
  2. everyone left the conference experiencing high energy levels, feelings satisfied. Such collaboration was indicative of the quality of the ongoing relationship amongst parties in future. 


Webb’s commitment resulted in an international movement known as “Collaborative law” which is practiced in many countries, including USA, Australia, Canada UK, New Zeeland, Ireland, Germany, Austria, and the Netherlands. A few South African Lawyers, of whom the writer is one, have already been trained in the practice of Collaborative Law, by the internationally known, Pauline Tessler from California.

3.    CORE ELEMENTS OF COLLABORATIVE PRACTICE

  • The parties are presented by their own attorneys, trained in collaborative negotiation.
  • They sign a contractual agreement or a “participation agreement”.
  • The parties and attorneys negotiate and participate in “four-way” meetings.
  • They all agree to co-operate and disclose all documents and information.
  • All documents prepared in connection with this process are inadmissible in any future proceeding.
  • Neither party my file any document or action in any court except if both parties agree.
  • The parties by agreement hire experts when needed to provide information for example psychologists, councillors, tax advisors, financial advisors etcetera.
  • Withdrawal of all the attorneys and other professionals or experts if any party chooses to go to court – forced disqualification.
  • Transparency of the process.
  • Avoidance of even the threat of litigation.


HOW DOES COLLABORATIVE LAW WORK AND WHY

The goal of the Collaborative Law Agreement or “participation agreement” means not having to go to court. The following terms and conditions would be included in such an agreement.

  1. Respect – parties agree to act respectfully
  2. No court – you may not seek or threaten with court action
  3. Disclosure and Discovery – co-operate honestly and openly and disclose all related documents and information. The parties undertake to make full and fair disclosure to their attorneys of all pertinent facts. Errors and miscalculations are identified and corrected and not “used” against each other.
  4. Problem solving atmosphere – focus on interest-based negotiations and work towards an amicable solution as well as client empowerment.
  5. Sharing experts – use of agreed upon professional and share the costs related to those professionals.


The undertaking that the attorneys will withdraw in the event of a breakdown in the negotiations assures that all participants are motivated to make this process succeed. It is a commitment that reduces the value of both clients BATNA (Best alternative to a Negotiated Agreement) in an attempt to keep them both at the negotiation table (Fisher et al., 1991:99-106).

We very often hear horror stories from our colleagues where parties incur hundreds of thousands of rand litigating about a pet, or a jar or some other piece of furniture holding no monetary value. We know from experience that there is an underlying interest in this claim and unfortunately the court process ignores these emotional issues.

Professionals can now be appointed to help the clients understand and resolve their disputes. It may be legal issues, financial issues and also include emotional issues. It boils down to an Interdisciplinary Collaborative Practice in appointing mental health practitioners, child specialists, conflict coaches, financial specialists, tax advisors, appraisers etcetera.

In a divorce matter the mental health practitioners can assist the parents to focus on the needs of the minor children. Although parties to a divorce mostly come with the perception that they only want the best for their children and put them first they struggle to do so in the consuming divorce process with all its demands. A specialist is able to assist the parties to discuss and develop practical and realistic parenting plans.

Our adversarial process mostly inflames the disputes and emotional controversy between the parties. They often became stuck in their position to “show” each other or make it a “matter of principal” and losing all focus on resolving the issues at hand and to focus on preserving family relationships and meeting the interests of the parties. This is a process designed to give the parties the necessary tools to have proper and constructive communication with their ex-spouse or when the process is completed.

Although collaborative practice originated in the context of family law it has expanded and can be applied to other civil law areas such as estates, wills and trusts, and commercial law. The core elements of this process remain the same in all areas of law.

By Gerrie van der Watt
15 May 2013

They work towards a negotiated interest based resolution.

 

Collaborative law is a non-adversarial process and aims to remove the disputed matter from the litigious court room. This process is a commitment to honesty, mutual respect and dignity. 

 

Collaborative law recognises the emotional issues that exists in all disputes and which can not be addressed by the adversarial court system.

 

1.    ORIGIN OF COLLABORATIVE LAW

 

The practice of Collaborative law started some twenty years ago when Stuart Webb, a Minneapolis family attorney, became “fed up” with the destructive effects of divorce litigation and decided to leave the courtroom for good. He asked the question, “what would happen if attorneys focused their talents and attention on settlement instead of trial” (Webb, S. 1996:26-28). 

 

Webb felt that there had to be a better way for parents or parties to deal with these important decisions in their lives instead of going to court. Webb shared his thoughts with his colleagues and a judge. Slowly but surely they started to develop a process of “working together”.

 

On 14 February 1990 Webb wrote to a Minnesota Supreme Court Judge, AM Keith, that according to him he observed often in the course of negotiating a settlement with the opposing side when “a climate of positive energy” existed, creative alternatives were presented. The benefit, he found, was two-fold;

a)    all parties involved were able to contribute to the final settlement and;

b)    everyone left the conference experiencing high energy levels, feelings satisfied. Such collaboration was indicative of the quality of the ongoing relationship amongst parties in future.  

 

Webb’s commitment resulted in an international movement known as “Collaborative law” which is practiced in many countries, including USA, Australia, Canada UK, New Zeeland, Ireland, Germany, Austria, and the Netherlands. A few South African Lawyers, of whom the writer is one, have already been trained in the practice of Collaborative Law, by the internationally known, Pauline Tessler from California.

 

2.    CORE ELEMENTS OF COLLABORATIVE PRACTICE

 

  • The parties are presented by their own attorneys, trained in collaborative negotiation.
  • They sign a contractual agreement or a “participation agreement”.
  • The parties and attorneys negotiate and participate in “four-way” meetings.
  • They all agree to co-operate and disclose all documents and information.
  • All documents prepared in connection with this process are inadmissible in any future proceeding.
  • Neither party my file any document or action in any court except if both parties agree.
  • The parties by agreement hire experts when needed to provide information for example psychologists, councillors, tax advisors, financial advisors etcetera.
  • Withdrawal of all the attorneys and other professionals or experts if any party chooses to go to court – forced disqualification.
  • Transparency of the process.
  • Avoidance of even the threat of litigation.

 

HOW DOES COLLABORATIVE LAW WORK AND WHY

The goal of the Collaborative Law Agreement or “participation agreement” means not having to go to court. The following terms and conditions would be included in such an agreement.

 

  1. Respect – parties agree to act respectfully
  2. No court – you may not seek or threaten with court action
  3. Disclosure and Discovery – co-operate honestly and openly and disclose all related documents and information. The parties undertake to make full and fair disclosure to their attorneys of all pertinent facts. Errors and miscalculations are identified and corrected and not “used” against each other.
  4. Problem solving atmosphere – focus on interest-based negotiations and work towards an amicable solution as well as client empowerment.
  5. Sharing experts – use of agreed upon professional and share the costs related to those professionals.

 

The undertaking that the attorneys will withdraw in the event of a breakdown in the negotiations assures that all participants are motivated to make this process succeed. It is a commitment that reduces the value of both clients BATNA (Best alternative to a Negotiated Agreement) in an attempt to keep them both at the negotiation table (Fisher et al., 1991:99-106).

 

We very often hear horror stories from our colleagues where parties incur hundreds of thousands of rand litigating about a pet, or a jar or some other piece of furniture holding no monetary value. We know from experience that there is an underlying interest in this claim and unfortunately the court process ignores these emotional issues.

 

Professionals can now be appointed to help the clients understand and resolve their disputes. It may be legal issues, financial issues and also include emotional issues. It boils down to an Interdisciplinary Collaborative Practice in appointing mental health practitioners, child specialists, conflict coaches, financial specialists, tax advisors, appraisers etcetera.

 

In a divorce matter the mental health practitioners can assist the parents to focus on the needs of the minor children. Although parties to a divorce mostly come with the perception that they only want the best for their children and put them first they struggle to do so in the consuming divorce process with all its demands. A specialist is able to assist the parties to discuss and develop practical and realistic parenting plans.

 

Our adversarial process mostly inflames the disputes and emotional controversy between the parties. They often became stuck in their position to “show” each other or make it a “matter of principal” and losing all focus on resolving the issues at hand and to focus on preserving family relationships and meeting the interests of the parties. This is a process designed to give the parties the necessary tools to have proper and constructive communication with their ex-spouse or when the process is completed.

 

Although collaborative practice originated in the context of family law it has expanded and can be applied to other civil law areas such as estates, wills and trusts, and commercial law. The core elements of this process remain the same in all areas of law.


TESTIMONIALS

Connie Theron, Practising Attorney - UCT Law Clinic
“While working at the University of Stellenbosch Legal Aid Clinic and later at the UCT Law Clinic, I found the pro bono mediation services of Gerrie van der Watt of the Mediation Centre to be highly professional and extremely effective in our divorce matters. It is fantastic that our clients, with little or no financial means, can benefit from such an excellent programme.

The mediators are able to provide a non-threatening environment in which the clients are able to talk openly about issues that matter most to them, but which the Court in a divorce matter may choose not to entertain. Through the mediation sessions, the clients are able to reach an agreement together which ultimately they are both happy with. In cases where mediation did not yield the result of a settlement, the process was still extremely valuable, giving the parties better perspective and highlighting the key issues in dispute.”