Tipp FM Legal Slot – 12th August 2014 – Alternatives to Court – Collaborative Law & Structured Negotiations
On Tipp FM, John M. Lynch, Solicitor, spoke to Seamus on “Tipp Today” about ways to resolve disputes outside the courtroom setting and in particular how the above methods can be used as a way of dealing with conflict.
Listen to John’s discussion:[soundcloud id=’163636502′]
What is collaborative law?
With collaborative law both parties to the dispute have separate specifically trained solicitors whose only task is to help the parties to resolve the disagreements that they have. Each of the parties must have a solicitor who is committed to the ideals of collaborative law. The people are at the centre of the process and actively involved in the negotiating process. It aims to go against the adversarial mindset that usually comes in disputes and comes instead on a problem solving angle.
How is it different from mediation?
It differs from mediation because each of the parties is represented by their lawyer rather than choosing another party to act as go-between. Negotiations take place in a number of four way settlement meetings that are attended by both clients and solicitors. The number of meetings required differs with each situation, depending on how complex the issues are. The agenda for each meeting is agreed between the clients and solicitors beforehand. Each solicitor is there to guide their clients towards a reasonable resolution. The aim of collaborative law is that as amicable a solution as possible is sought, reducing the legal expense and court time. All people in a Collaborative Law case undertake to be absolutely truthful with each other about the finances. Collaborative law is not suited to everyone who is involved in a dispute; a degree of trust is necessary and the parties must have a reasonably civil relationship.
What is involved in Structured Negotiation?
The traditional method used to negotiate Family Law Disputes is by way of negotiation between the parties resulting in a Separation Agreement or when Proceedings are issued negotiation again between the parties and their Solicitors resulting in a settlement of the case and that settlement been made an order of the courts.
Is that not the same as collaborative law?
Collaborative law may not always be suitable for all clients and other models of alternative dispute resolution may be more suitable for particular cases. The process is initiated when the couple signs a contract (called the “participation agreement”), binding each other to the process and disqualifying their Solicitors right to represent either one in any future family related litigation.
What the structured negotiation process seeks to do is to establish ground rules for negotiation to enable parties to be clear about what they can expect from the process and also what is expected of them. It differs from collaborative law / practice in that the lawyer doesn’t make a commitment not to go court on behalf of the client if the negotiations fail.
Are there certain ground rules that apply?
Yes there are usually certain rules that would apply so that the partied know what is expected I advance – examples would include:
- Full Disclosure would be expected of all parties;
- Commitment to engaging fully in the process;
- Negotiations would be on a without prejudice basis;
- If experts are to be required preference would be to appoint joint experts;
- Parties would agree to exchange a list of options each;
- Commitment by both sides to address any behavioural issues.
For further information contact John M. Lynch, Solic