Collaborative practice is a new method of dispute resolution, used mainly in family law matters. By taking a non-adversarial approach, it challenges the strictly positivist view of the lawyer as ‘zealous advocate’ for the client. As such, it has received much criticism from the established Bar and legal profession.
This book provides a doctrinal and empirical analysis of collaborative practice with a view to assessing its place within the dispute resolution continuum and addressing whether this criticism has been justified. It begins by establishing the theoretical underpinnings of conflict and differing approaches to conflict resolution, the impact of the comprehensive law movement and therapeutic jurisprudence. The origins and development of the collaborative process and the framework it provides for a multidisciplinary approach to conflict resolution is outlined. The book addresses the examination of the process undertaken in the lead up to the enactment of the Uniform Collaborative Law Act in 2010; now regarded as a model of best practice. Finally, through an examination of empirical research undertaken in the US, Canada and in England and Wales, and in presenting the results of the first known empirical research into the process in an Irish family law context, the book concludes with an evidenced based analysis of the process from the perspective of couples who chose to use the collaborative model to resolve the issues surrounding their relationship breakdown, collaborative lawyers and lawyers who do not advocate a non-adversarial approach.
As such this book provides a valuable insight into the process which will be of interest to: academics; practising lawyers; members of the judiciary; researchers in the fields of conflict resolution and family law and for students studying alternative dispute resolution (ADR).
Table of cases
Table of Statutes
Chapter 1 - The Theoretical Foundations of Collaborative Law and Alternative Dispute Resolution
The Theory of Alternative Dispute Resolution and the Importance of Understanding Conflict
Collaborative Practice on the Dispute Resolution Continuum
Collaborative Practice as a ‘Vector’ in the Comprehensive Law Movement
What is Therapeutic Jurisprudence and How Has it Been Received?
Chapter 2 – The Process and the Unique features of Collaborative Practice
The Origins and Development of Collaborative Law
The Process – a broad overview
The Participation Agreement
The Disqualification Clause
The unique elements of the collaborative process
Are collaborative lawyers taking on a higher level of ethical standards?
So why would lawyers agree to engage with this process?
The Multidisciplinary Model
Chapter 3 – The Advent of the Uniform Collaborative Law Rules/Act 2010 and the ripple effect.
The Impetus for an Act
The Uniform Collaborative Law Act
Prior to Engaging in the Process
Engaging in the Process – Core procedural provisions under the Act
The Impact of the Uniform Collaborative Law Act – Ireland as a case study
Chapter 4 – What has the research revealed?
International Research - Methodology
Who is using the process?
Clients’ motivations for using collaborative practice
Collaborative practice v mediation
Lawyers’ motivations for engaging in the process
Satisfaction with the process
Clients’ Concerns and Recommendations
Is it only for low conflict cases?
The best interests of the child
Is it an easier option for lawyers and clients?
Chapter 5 – Exploring the Development of Collaborative Practice in Ireland
The Key Research Questions
Profile of Collaborative Lawyers
Public Awareness of the Process
Case Outcomes from the process
Reasons for termination of cases
Barriers to the interdisciplinary model
Collaborative Lawyers’ concerns with the process overall
Factors identified as being of importance to the development of Collaborative Practice
Impact on Approach to Practice
The Views of Clients who used the collaborative process
The Collaborative Lawyer’s Perspective
Solicitors’ and Barristers’ Views on the Courts’ System, Mediation and Collaborative Practice
Chapter 6 In conclusion…
The Impact of Lawyers as Agents in the Dispute Resolution Process
The Key Differences in Approach — Collaborative practice v ordinary lawyer negotiation or court
The Collaborative process through the framework of the UCLA
Barriers to Collaborative Practice
Addressing the barriers through a change in the way lawyers are taught? : Impact on Legal Education
Adapting the courts’ system