Collaborative and layering the approaches to Alternate Dispute Resolution

We are seeing increasing numbers of separating couples who wish to avoid the litigation process. The reasons for this are multiple: there is an understanding that the court process is under extreme pressure and will take considerable time, with commensurate cost; there is increased awareness that a litigious approach increases entrenchment and polarisation; and many hope for a more cooperative process to enable speedy resolution with limited fees and without creating tremendous hostility. There are occasions where the hope for a more cooperative process is based on an optimistic analysis by one or other of the couple. Some people believe their case is simple and straightforward when it is not.

There are also increasing numbers where the choice for a cooperative process is based on a very realistic understanding that the other party may be difficult – they are seeking a process which achieves resolution, whilst containing behaviours and without involving the court. With these latter cases, it can be of particular importance to assess the suitability of an alternate dispute resolution process. There may be significant underlying fears by one or the other which are not immediately apparent and which raise issues as to how to deal with that person in a supported environment.  If still suitable for a collaborative approach it can raise an early flag that a layered approach may be needed subsequently.

Of particular interest to both of us when we trained collaboratively was the trainer’s assessment of what the collaborative process offered and to whom, in terms of client type. Pauline Tesler, who trained Georgie’s cohort, was very helpful in providing considerable direction on this point so that post-training allowed for some safe experimentation on more difficult cases and the suitability for the collaborative approach. We have both worked together for some years collaboratively, with gaps along the way and consistently find that it is possible to work on more difficult cases collaboratively with good outcomes but with evolving layering of approach to assist with those cases at the more difficult end. It assists the learning curve for all of us in advancing the alternatives to court we offer, if we are able to share practice and experiences with a healthy discussion of what we have found does and does not work.

The following has assisted us as an approach to collaborative layered cases: –

• The working relationship with the other collaborative solicitor is vital to the approach. There has to be an ability to safely discuss concerns. These concerns may be about the legal complexity involved in the case with differences of legal opinion, but they may also equally be about either or both parties’ emotions or driving factors being brought into the room. Where you have not worked collaboratively with the other solicitor previously, it is helpful to acknowledge this and discuss thoughts on a without prejudice basis very early doors.
• We make it a practice to talk through the Collaborative Agreement against the backdrop of concerns before we move into a four-way discussion involving the parties on the suitability for the collaborative approach. This early identification of possible issues allows us to filter cases at a very early stage and see if another process is more suitable. If a conclusion is reached to progress the matter collaboratively the early discussion allows for a heightened awareness when issues start being flagged. This may also extend to considering up-front ways in which to manage potentially difficult situations arising. For example, there is often a pace differential between the parties with one wishing to steam ahead and one needing considerably more time. Alternatively, there may be a need for considerable detail of disclosure on a matter of some complexity but there may be more limited patience for the party who has the detail, as his or her understanding is well in advance of the other. There can also be power imbalances which add an extra layer of complication. Getting ahead of any issues of this nature, by managing what is said from the onset, can really assist when a problem becomes more pronounced later because the groundwork is already in place and has been discussed.
• Frequency of communication is very helpful. Keeping in regular supportive contact between meetings with your own client helps reinforce what is going well, where we are at in the process and why, and provides early warning of any escalation or deviation from what is anticipated. Frequent communication with the other solicitor allows for the sharing of perspectives, reinforces the working relationship and allows troubleshooting upfront. Where a problem emerges, we will often switch to joint communication with both parties at the same time to reinforce the message of team working, whilst managing the problem. We expect to receive support from the other in managing the process when we work through the Collaborative Agreement; from the outset, we reinforce these approaches so that there are no surprises and it is built into the client’s expectations. We also do reminders along the way so that the separated couple can see the benefits.
• We regularly revisit frank assessment of the needs of the case. We have increasingly found that adding a layer of assistance can be very effective. We tend to have cases where there is some aspect of significant financial value and where there may be legal complexities involved. Separating couples may also often have individually driven financial agendas, irrespective of the desire to work collaboratively and it is important to be able to avoid an impasse situation arising. Depending on the nature of the issue depends on the additional layer that seems most appropriate. We have individual as well as joint experience as to options that have worked. On one case, having a mediator work with the collaborative solicitors was extremely effective at overcoming a significant hurdle, but mediation has value wider than this for example on a discrete single-issue point while holding up the remainder of the agreement. We will consider the use of Arbitration or ENE. In our consideration of the choice, amongst other factors, we will look at the personality of the parties. Some respond well to an outcome by which they are bound and some prefer a more discursive process that allows for discussion and evolving negotiation as part of an ENE.  If we are agreeing on an additional layer of assistance, the choice of the additional provider needs a very careful selection. Our preference, for example for ENE, is highly experienced Counsel who is able to be incisive but with very good people management skills in the room so that clients can be brought along in a very consensual way. We also recognise that it is not just clients with strong personalities, and that we as collaborative solicitors also may benefit from how we are dealt with in a process.

Layering

Layering can almost be considered a hybrid approach in itself. At the early stage of consideration for collaborative progression, it may be clear that there is such strong attachment to a particular point of view or issue, that another layer of assistance is going to be needed to get to resolution. On one of our recent cases we identified this early and raised the possibility in discussion together and individually with our clients.  When we needed to revert to the additional layer of ENE the clients were already prepared for the prospect. The two of us discussed the issue as preparation for a four-way and agreed a process at the collaborative meeting to ensure there was properly informed agreement. The process we agreed was as follows: –

1. We identified a suitable Counsel and the clients had time to look at Counsel’s profile and indicate whether either needed more choice of options of expert. We talked through why we believed this Counsel was a good choice and even went into specifics of his reported cases so that his expertise on the specific legal complexity involved could be demonstrated.
2. Before agreeing to proceed, we arranged a joint discussion with Counsel, initially without the parties. Our choice for the particular case was Mr James Ewins KC QEB and he was incredibly flexible and co-operative in talking through: our style of progressing the collaborative case; the specific needs and time frame; plus how we wanted to communicate. Our preference in style for this case was for the solicitors to jointly represent the issues involved, laying out all concerns from each party, almost in the format of a brief. The correspondence needed to be joint between the solicitors and Counsel but not copied to the parties. This was however on the basis the parties were kept fully informed of each correspondence and that anything of significance was shared. We wanted the opportunity for Counsel’s views involved in the ENE to be presented within a group session. We chose, for cost effectiveness, for Counsel to participate on screen remotely but for the rest of us to be together in the same room. We allowed for break out time and for document sharing both on screen and in paper format. We needed a process that would allow for discussion after Counsel had delivered his views and for multiple revisit, if necessary. We envisaged that we may need more than one session with Counsel and that there may be a period of thoughts exchanged after the initial session.
3. Having discussed that Counsel could work with all of this and could accommodate the time scales, fees were agreed and the process proceeded. We had regular communication with Counsel throughout the process, to keep on top of the management of the case. The involvement of Counsel was probably engaged over a core period of 8 weeks. There were then two further collaborative meetings to reach agreement before we moved to drafting. The time scale, excluding disclosure and drafting, has taken 4 months.

We both take the view that it is difficult to see how the Collaborative process would have succeeded without the layer of ENE, for this type of case. In co-working going forward, we will automatically continue to consider layering. The needs of cases vary significantly and it is good to keep flexibility of approach in assessing what is best needed for the people in front of you.

Georgie Hall is a Partner and Head of Personal Law at Prettys. She has been with Prettys Solicitors LLP since 1993, was Collaboratively trained in 2005 and trained as a mediator in 2007. Georgie’s predominant client base resolves by way of alternate to court resolution. The ethos of the Family Team’s approach with Talking Works reinforces that significant focus is placed on early assessment with clients as to the best bespoke form of dispute resolution for the matter.

Email ghall@prettys.co.uk

Lyn Brisley is a Partner and Head of the Family Team at Buckles, having recently stepped down from a term on the Operations Board. She has been with Buckles since 1996, was Collaboratively trained in 2006, became a Mediator in 2011 and remains accredited. Lyn is passionate about her dispute resolution work, perhaps reflected in her enthusiasm when chairing the local POD.

Email lyn.brisley@buckles-law.co.uk