For family lawyers like myself, witnessing clients going through some of the darkest moments of their lives, where often, their lives are literally falling apart around them, can have serious long-term effects. Institutionalising “debriefing” practices and guaranteeing access to counselling for lawyers working with traumatic content has been suggested as a solution.

For the past 30 years, however, family lawyers have been asking themselves a more fundamental question – does family law have to be so traumatic in the first place?

In the mid-1980s, a war-weary lawyer named Stu Webb in Minnesota, USA, answered that question with a resounding “no”. Thus, collaborative practice started.

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Collaborative practice has been established in Australia since the early 2000s. Over the last 10 years, it has gained substantial popularity among Australian clients and the legal profession.

Many family lawyers, including myself, have integrated collaboration into their practices. And most who have would choose collaboration over litigation any day of the week.

Combat v collaboration

The collaborative method starts with an obvious observation that our legal system has lost sight of. Breaking up is hard. It evokes feelings of shattered dreams, grief for what was and what could have been, and fear for what the future will bring for oneself and one’s children. Most times, it involves anger and resentment.

Most separating couples ask themselves questions that touch fundamentally on financial and emotional security: Where are my kids going to go to school? How am I going to afford to live? Will it ever be possible to experience the safety of “home” again?

On top of the anxiety associated with divorce are the stresses of a legal process. Legal costs further compound the stress, and long legal processes prolong it.

Instead of addressing the causes of the psychological distress associated with separation, the adversarial legal system adds to them. It does this by requiring the parties to think about winning and losing; one side against the other, fighting it out.

Collaborative practice, by contrast, is premised on the idea that reducing polarisation between the parties gives rise to better outcomes, not just within the process itself but in their post-separation lives. The process is designed with humans – not the law or the lawyers – at its centre.

I regularly receive feedback from couples who have been through a collaborative process that they have emerged from the divorce as friends and amicable co-parents. That is an outcome that is never achieved through litigation.

Since becoming a collaborative practitioner, emotional exhaustion has become far less of a feature of my professional life. Working as a family lawyer in the collaborative space is a breath of fresh air. Collaborating as a team with like-minded, skilled professionals, all bringing their wealth of knowledge and expertise together to benefit a family, makes so much more sense and is such a worthwhile use of our repertoire of skills.

The work is not easy and, in fact, can be extremely difficult and confronting. But it is rewarding. And when difficult issues come up, as they inevitably do, we discuss and resolve them as a team instead of positioning ourselves for ongoing battles.

The collaborative process

Collaborative practitioners are formally trained in a process – refined through 30 years of experience and research – that involves a pre-planned series of meetings, usually four or five, between the couple, their respective solicitors, and a collaborative coach. It may include financial advisers and accountants.

The interdisciplinary team works with the couple toward a single goal: achieving the best possible outcome for every family member.

The couple is invited to imagine the kind of post-separation relationship they want, especially concerning parenting and property. They are asked to identify their respective needs, interests, and concerns. They are then assisted in negotiating an outcome that protects both parties and the family unit. Conflict and manifestations of trauma are managed with techniques that encourage focusing on future opportunities for family life.

A participation agreement is signed at the process’ outset. It sets out how the parties and professionals will behave (with empathy, trust, and respect) and, crucially, provides that the lawyers involved will withdraw if litigation is threatened or commenced. Thus, all parties have an interest in a resolution.

Of course, collaborative practice is not the answer to every situation. Some couples – especially those with less animosity – may find negotiation or mediation more cost-effective. Couples whose relationships have broken down to the extent that being in the same room is impossible might require a judicial decision.

Ultimately, however, the opportunity to think about, and do, separation differently has been life-changing for families and practitioners alike.

Aileen Slattery is a solicitor-director of ATW Family Law and co-president of Collaborative Professionals (NSW).