An introduction was given to a new suite of documents for use by collaborative professionals, which are set out in a similar way to the agreement to mediate. There is a new pre-participation agreement protocol making it clear that early collaborative discussions are held on a without prejudice basis, even before the signing of the participation agreement. The new participation agreement is drafted in such a way that it can be adaptable to different forms of working together as lawyers outside of the court process, and can helpfully provide a framework for round-table meetings if required. Whilst I am a collaborative purist at heart and do not practice collab-lite, there are times when I work with a lawyer who is not collaboratively trained but still wishes to work around a table in a sensible way. This document is therefore able to be adapted to accommodate such a situation. The addendum for remote working will also be useful when working on Zoom and Teams.
I was very pleased to see how inclusive the new participation agreement is for neutrals, bringing them to the forefront and creating the collaborative “team”. In many areas of the UK neutrals remain on the outskirts of collaborative working and their valuable input is sidelined. Often this is due to cost concerns or lack of neutrals locally, rather than a lack of recognition of the expertise they bring to the table and the great assistance they can provide to our clients from the outset. In my local collaborative POD, Hampshire Family Legal Solutions (HFLS.co.uk), we involve a family consultant and a financial adviser from the very first meeting in all cases. Working in this way has been invaluable for the clients we have been able to help as a collaborative team. We would usually need to amend the old participation agreement to reflect the ongoing and very important work these neutrals offer during and often after the collaborative process. I have no doubt that the new agreement will be welcomed by all, but particularly neutrals to enable them to feel more included from the outset and part of the collaborative team.
As expected, there was much discussion surrounding what is sometimes referred to as collab-arb as the new participation agreement provides for arbitration if there is an impasse within the collaborative process. No matter what side of the fence you are on in relation to this debate, there was some consensus that arbitrating on a specific issue to conclude matters for the parties rather than starting again with new lawyers (of course the parties must agree to sign an Arb1) would usually be better than applying to the court. However, as an arbitrator I would say that!
Finally, I was personally glad to see the back of the DO/DO NOT section of the old agreement, which was at times embarrassing to read through with clients. They understand the nature of collaborative working once their lawyer has explained it to them and do not really need a list of how to behave. I do not believe that section has ever prevented any of my clients from breaching such rules and behaving unreasonably!
I am sure all collaborative professionals will be grateful for all of the hard work put into drafting these documents, which have clearly been well thought through. And the parting message – look after yourself and your collaborative colleagues. Wellbeing was the theme throughout the conference and even more so in this very useful session.