Collaborative Practice

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.a 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. a 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).

Auteur

Dr. Connie Healy is a lecturer in Law at the National University of Ireland, Galway

Contenu

Contents

Table of cases

Table of Statutes

Abbreviations

Introduction

Chapter 1 - The Theoretical Foundations of Collaborative Law and Alternative Dispute Resolution

* Introduction

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?

Conclusion

• Chapter 2 - The Process and the Unique features of Collaborative Practice

  * Introduction

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

Conclusion

Chapter 3 - The Advent of the Uniform Collaborative Law Rules/Act 2010 and the ripple effect.

* Introduction

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

Conclusion

Chapter 4 - What has the research revealed?

* Introduction

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

Legal Advice

Models used

Settlement Rates

Outcomes

Disqualification Provision

Satisfaction with the process

Disclosure

Clients' Concerns and Recommendations

Is it only for low conflict cases?

Costs

The best interests of the child

Ethical issues

Is it an easier option for lawyers and clients?

Conclusion

Chapter 5 - Exploring the Development of Collaborative Practice in Ireland *

Introduction

The Key Research Questions

Methodology

Sampling

Analysis

Limitations

Nationwide Questionnaire

Profile of Collaborative Lawyers

Public Awareness of the Process

Settlement Rates

Case Outcomes from the process

Reasons for termination of cases

Screening

Disqualification Clause

Costs

Interdisciplinary Model

Barriers to the interdisciplinary model

Collaborative Lawyers' concerns with the process overall

Ethical issues

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

Conclusion

Chapter 6 In conclusion...

* Introduction

Cooperative Law

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

Conclusion

Bibliography

Index