Welcome to Divorce Cafe, the podcast where we demystify detangle and hopefully detox the legal processes that follow a separation. 

We are lawyers ourselves and like everyone else, we are always saying there's got to be a better way. Well, today we are wondering whether we might have found it. Collaborative law abandons the hallmarks of a traditional legal dispute. Combative lawyers’ letters, a lack of human interaction,and at the end of the day…court.  The name Selina Jane Trigg is synonymous with the concept of collaborative law in New Zealand.

She has been a lawyer and a mediator for over 20 years, maybe well over now. I don't know if that bio’s out of date or not that you can tell by looking at you…previously the Chair of Collaborative Resolution New Zealand, which trains collaborative professionals in New Zealand, now the first New Zealander to be on the board of directors of the International Academy of Collaborative Professionals, the IACP.

Her focus for some years has been on training professionals to be collaborative lawyers and has recently banded together with other lawyers to form Lighthouse Legal, which centres its approach on collaborative law. We want to know everything there is to know about collaborative law so Selena Jane Trigg, Welcome to Divorce Cafe. 

Oh thank you, it’s wonderful to be here and thank you for that very generous introduction.  Yeah, I am not sure I can share everything there is to know about Collaborative Law or Collaborative Process in one podcast but let’s start the conversation and see where we get to.

That sounds promising. So Shelley is going to nail the icebreaker.

This thing we do is the icebreaker, although we have just talked, so it's fine, we don't really need it, but we will do it. So I do actually have a bucket of icebreaker questions and I’m not going to look at them, 

I added a few goodies today. 

Okay. If you could eliminate one thing from your daily routine, what would it be and why?

I am laughing because it is the end of the school holidays at the moment when we are recording this and I have to say I have loved not having the morning routine of getting a teenage son out the door and in the car and off to school.

We don't know what you're talking about. We don't know what…

I think I am preaching to the choir here.

Along with the millions of other parents that are also taking their child to school on the first day.

You will miss it when it comes to an end. 

Will we??

 So we are going to ask you some questions and then you can give us your very expert answers.

So the first question we have is what was your pathway to collaborative law? How did you get here? What what did you do along the way? 

Well it started about 14 years ago, and I am not going to step you through the whole thing because that would take some time.  But I think there were two main things that drew me to the pathway.  And the first is very pragmatic.  I talked about my son, and I actually just needed to find a way to work that was conducive to also participating in his upbringing in a meaningful way.  And the second is really summed up by what you said in the introduction Taina, which is that there has got to be a better way.  And I think a number of the reasons I was drawn to collaborative process is the same reason clients are drawn to it.  I was looking and seeking out a process after probably 20 odd years of litigation or maybe a little less than that, of a process that was keeping clients out of court.  Because I was never hearing clients come to my door and say “Ooh bring on Court I am looking forward to it”.  I was looking for a process that made sense in terms of the time it took for the clients having regard to where they were at in terms of their own emotional and psychological readiness to come to an agreement.

I was seeking out a process that enabled clients to really participate in the final decision making and as a result have a sense of ownership over that decision because I really believe that if that happens, results will be more enduring.  That you won’t get people back on your doorstep a year later needing to go back to Court.  Um yeah.  So those were some of the reasons that drew me to it.  I really most importantly wanted to find a process that reduced or at least contained the relational conflict between people who were going through a separation.  Because I could see how sending off affidavits and letters and cross examining in court wasn’t actually conducive to that, and in doing that it wasn’t conducive to what was happening for the children in those families.  And I am really concerned about what templates we give those children for when they encounter conflict in their adult lives.  So I was thinking there has got to be a better way, you know looking at all of that, looking at it holistically…just the law is just one part of the puzzle.

How did you come across it? 

I went to a mediation training first of all, as so many lawyers did.  I went to a mediation training run by the NZ law society and while I was there I met the amazing Dr Gaye Greenwood who is a mediator and at the time was a lecturer at AUT University and I am so grateful for her guidance and mentorship over the years.

We actually we just interviewed her, so she's going to be by the time this goes live, her episode will be up there.  That’s a cool coincidence.

She encouraged me to go to a collaborative process training.  And being quite in awe of Gaye I said absolutely, show me the way and I haven’t looked back.  It made perfect sense to me.  It was very challenging, the training, but it led me to being involved with Collaborative Resolution New Zealand and then led me to the international academy which I have to credit with the development, and the skills and the learning that have meant I can now say I don’t go to Court anymore.  I don’t litigate, I focus on collaborative process and mediation.

So that we all understand and so that we we know: what is collaborative law? How does it work? 

So first of all you have probably noticed I have referred to collaborative process or collaborative practice.  That is how I prefer to refer to the process rather than as collaborative law.  And I do that for two reasons.  The first is it is not just the domain of lawyers, this work.  It is an interdisciplinary model.  The second reason goes back to what I mentioned earlier, the law is only one part of the decision making process that people go through when they are resolving the parenting, the financial, the property issues that arise on a separation.  So law is part of the solution but it isnt the complete answer, so that is why I tend to call it collaborative practice, collaborative process, sometimes collaborative divorce. But put really simply, it’s a dispute resolution process in the same way that mediation, arbitration and litigation are all processes that aim to bring an end to a dispute.

This process is slightly different in that it is completely outside of the realm of the Court.  So it was created about in the early 1990s by a lawyer in America called Stu Webb who was really looking for a truly out of court resolution process that engendered respect and cooperation and an interest based approach to problem solving with the participants.  So typically in terms of how it operates, if a couple is separating they’ll engage specially trained professionals to take them through the process.  And everyone, the parties and the professionals will sign a participation agreement.  Which says a number of things.  It says importantly they are not going to go to Court.  As I said, this is the only process where you say, while this process is afoot, neither of us is going to threaten court and we are not going there.

Which is really important because it is not what we call litigotiation.  It’s not negotiation with a parallel litigation strategy happening alongside it or overlaying it.  So typically both parties will have their collaborative lawyers guiding them and advocating and supporting them through the process but as I said it is interdisciplinary so there are times we will bring on financial neutrals, or mental health professionals to help work through the process.

And there are just some jurisdictions now where the lawyers recognise the benefit of those professionals so much that they will refuse to do this process without the full professional team.

I think one of the key aspects that make the process different is that there are no lawyer’s letters, no letters going back and forth that can potentially inflame things between the parties no matter how well intentioned we may be when we write them.  So that is a really important aspect of mitigating and containing that relational conflict between the parties, and everyone, including the lawyers agree to be transparent, to be open, to act in ways that are really moderate, very respectful and really conducive to constructive problem solving.  So that really gives the parties an opportunity to observe and have modelled to them, constructive resolution techniques.  And so there is an opportunity there for them to actually deploy those in the future.  For them to learn and adopt them in the future, for them to learn new ways of relating to one another in this new chapter that perhaps as co-parents they are having to navigate.

So there's no letters but I understand is you schedule a series of meetings - Is that how things work? 

Yeah everything is done together in a series of meetings.  Those meetings may be the professional team, but typically they are the whole group.  They are the parties and the professional team, coming together with very clear agenda there is no blindsiding or surprising anyone with what’s going to be discussed.  Very clear homework and things to be done after the meetings, and we take minutes, it’s very business like in that sense.

Okay. And is it correct to say that you generally will appoint one joint expert, like you'll have a joint accountant, maybe a joint valuer, those sorts of people is that how … are those some of the professionals that you bring in?

Typically with the financial professionals they come in as a neutral for both parties.  I know over in the US they have different templates or models for how they work with the mental health professionals, they call them coaches, whether they have one for both parties or each party has their own professional working in that space with them.

Is there ever a lawyer for child?

Um we don’t have a lawyer for child typically but this is a really interesting space that both mediation and collaborative practice are exploring and that is how do we bring the voice of the child into the room.  One way is to have perhaps a lawyer that the parties engage for that purpose.  But what is happening that I am watching with some real interest in Australia is using a child development specialist, so typically a psychologist or someone with that expertise to meet with the child and to come into the process for the really I guess specific purpose of informing the team and the parties about the child’s views and also importantly what that child’s particular needs are and stage of development mean is important for everyone to consider when making decisions about that child.  

So really promoting that best interests kind of view.

Absolutely.  And in my collaborative cases more often than not, we are looking for really cost effective ways to work so it may be that we carve out the parenting aspects of what needs to be resolved and send them to work with someone a psychologist or someone who has specific skills in that area.  Or to FDR, is a cost effective mediation that can run parallel to what we are doing.

 So the bulk of your matters are they more, do they tend to be more relationship property and spousal maintenance rather than the Care of Children Act / custody / contact.

All of the cases will have probably…all of the cases will have aspects of both.  But as I said we tend to try and think how can we work smartly here which may mean carving off some of the substantive parenting decisions that need to be made.  Obviously when parties first come to the collaborative process they may have some interim and urgent things to resolve around – so what are we going to tell the kids right now?  What are we going to do in terms of their care arrangements until we can put some deeper thinking and thought into this.  and so we would work with them on those issues.

Okay, cool. Okay. Okay. Next question. Does it work and do it does does the collaborative process work? Do we have any data or confirmation of that? 

Yeah well, yes it does.  Umm, you know there are tens of thousands of professionals around the world who wouldn’t be doing this work, and some of them have been doing it for well over 20 years, if it didn’t work, if they didn’t see the benefits for the clients and their families and their children.  Speaking from my own experience it does work and even in the really hard cases because something I think is important to convey is this isnt a soft option for anybody.  This is actually really challenging.  There is nowhere to hide in this process, coming together and working the problem together is hard work.  But I am really struck even in those hard cases by how much we can actually reduce and mitigate conflict and how we can find some really beautiful, creative solutions that are tailor made for each particular family.  So from my perspective it works really well on those two levels.

As a lawyer it just makes for a much better day in the office.  I came to this work pretty disillusioned and pretty burnt out, I must confess and I see a number of people coming to the trainings that I participate in who express similar sentiments.  They express a sentiment of being out of alignment with their work, with perhaps their own values at play. So a number of my colleagues express that same sentiment that this is a really great way to work, it’s a very fulfilling way to work.  But in terms of your question about data, I think we can never have too much data, and it is well due for an update.  But there is a number of significant research pieces out there around collaborative process and I am told there is some research about to be published out of Florida.  But what they all show is some really commonality around the process being cost effective, it being responsive to the clients’ needs in terms of the time it takes, really an adaptable process, and we are seeing really high, really high – I am avoiding the word settlement rates – really high resolution rates, similar to mediation.  And high client satisfaction rates are coming through as well.  And we are getting lots of reporting in that data that there are high, the high rates of agreement also are married up with longer lasting resolutions.  That we are not getting people back a year later needing to relitigate things.

Okay. Is collaborative law for everyone.?

No it’s not.  Just as mediation isnt for everyone, and I would say litigation isn’t for everyone, it is most definitely not for the person who thinks ooh this will be a soft option, it is definitely not for the person who thinks they can use the process to get one over someone, or one over, you know get one upmanship in the process at all.  Like any process, when you are working with families going through these high levels of stress, it needs to be a safe process, and so when we are meeting with clients part of our training is to be screening and assessing, what is going to be the safest, least intrusive process for this family?

What is going to be a process that aligns with how the clients are saying they would like to navigate this time and this transition in their family’s lives.  So I would just challenge my legal colleagues to also ask similar questions around the appropriateness of litigation.  Is this suitable for my client?  Is this going to be empowering for my client or not?  Is it going to give them opportunities to change the conflict dynamic between them?  is it going to be cost effective, is it going to be safe?

So how I note that you can't get legal aid for collaborative practice. 

Ah news flash.

Well I'm interested to hear what I was going to ask was that it seems that the, the most of the users are the, the more well-off Pakeha people. How can we expand…it seems like a process that could benefit more people.  How could we expand out the people who can be involved now?

Absolutely and legal aid is one really critical area in which we can make the process far more accessible to many. I always say that when I win lotto I am going to set up a special project that provides low or probono collaborative process for people, but I don’t think anyone should hold their breath and wait for that.

It has taken years and lots of work to try and get the government of whatever time it is and legal aid in particular on board.  But just a couple of weeks ago a case I am involved in we have managed to get through some really great work by Sarah Vyle at Denham Bramwell we have managed to get legal aid for a client of hers, so I am hoping that is going to signal a change in approach and make it more accessible. 

Okay, so what do lawyers have to learn or unlearn to make collaborative practice work?

So like I said earlier, you do need to be specially trained in this process and it’s not a one and done thing either.  It’s not just come to the training and suddenly you finish the training and next Monday you are a collaborative lawyer and you are dealing with cases all the time.  It takes quite a commitment to ongoing development just like any skill, you need to keep learning, and also quite a commitment to changing up the way you practice aswell, in order to be able to attract collaborative work and to be utilising it.  It’s very easy to fall back into your usual comfort zone of how you practice.  So I think a couple of the key learnings for lawyers are around moving from what we have understandably have, is a very positional, entitlements, right based approach to problem solving and learning a more interest based approach.  And the other critical learning I think exists for lawyers is learning how to be part of a professional team, and quite often I hear lawyers say – well I am collaborative, and most of them are, but working in a team together with a family requires quite a new skill set.  And it requires lawyers really learning when to lead, when to step back and let others do the leading, including the clients, and I think as a trainer, the thing I have found lawyers struggle with the most is that interest piece.  Is really doing a deep dive into what is truly important for my client.  You know, what is important to them about the way in which we step through this process or step through a resolution process? What is important to them about the ongoing relationships that are at play here.  What is really important to them substantively.  Is financial autonomy and confidence important to them.  Is having the children grow up in the same community important to them.  And if so why.  Digging really deep to understand their motivations.  So it is not a superficial exploration and I find lawyers particularly it takes some time and some really concentrated effort to be changing that aspect of their work.  But what collaborative practice offers is a wonderful process to then use that information but I argue that that really good understanding of what your client’s interests are, I draw it up in a compass for them, to guide you through whatever process you use.  Whether it is litigation, lawyers letters, mediation or collaborative process.

Cool. And so you've mentioned the participation agreement where parties agree not to go to court while the process is underway. Why is it so important that lawyers not go on and represent those same parties in any ensuing litigation? Why do you think that's a crucial part of that agreement?

because, yeah, that's I guess we haven't touched on that. I we it's, it's the American model. Is it also the New Zealand model that, that if you have a lawyer and then it doesn't work and you go end up having to go to court, you can't use the same lawyer. The same thing happens in mediation though doesn't it.

It is pretty much internationally the standard that there is what we call the disqualification clause.  It is what I see as one of the key anchors of the collaborative process and what makes it quite different.  It is a central tenant of the process and it is in that participation agreement as you mention Taina.  So the lawyers are essentially saying that if this doesn’t resolve itself in collaborative process and it needs to go to a litigation type process if that’s arbitration or litigation, then the lawyers will step back and new lawyers will pick up acting for the parties from there.

Now the reason it’s really critical is, if you imagine for one moment Shelley and Taina that you were having a conflict or a dispute that you came to the collaborative process with and I was acting as Taina’s collaborative lawyer, and we are saying everyone be really open and transparent and you are signing to say you will be that way.  I am picking Shelley that you probably won’t be feeling too comfortable about being open and transparent if you e thinking Selina could be eyeballing me across a court room ultimately and asking me questions about this.

The same thing happens in mediation though don’t they and the cover it

And parties cover that by agreeing on confidentiality. Like, you know, you can't take things that are said in the mediation through and use them against the other party. I just…

Theres a lot of stuff that happens in med that actually informs the role you may take then when you are litigating a case.  If you mediate and you then go on to have to go to court and represent our clientt in court there are all sorts of things that you have picked up about the other party from that mediation experience.  Without actually having to delve into what was said and done in the mediation you have picked up how they react under questioning, you’ve picked up what some triggers might be for them, you’ve picked up all sorts of things around the way they may conduct themselves as a witness.

Lawyers aren't like that, you are making them sound like sneaky and devious…

but in all honesty 

Again compared to a process that is not devoid of a parallel litigation strategy, you know mediation, often you are coming to mediation often right before you about to go through those court room doors I have mediated a number of cases where that has been the case, and look I…collaborative practice stands on the shoulders of mediation and I am a great proponent of it, but I do think that sometimes it is artificial to say that that confidentiality aspect of the agreement prevents things being, knowledge that we have gleaned has been used in litigation.

So, so what does it, what does that commitment so binding them to that, what does it add to the, to the, the general …and does it take something away? 

And I'm thinking of that ability to send something up to the video referee. You know, there are things like a Section 15 adjustment which are hotly, you know, they're tricky areas that people often come to a dispute…they don't, they're not aware of them. It's an anathema to the way that they thought things worked. What do you mean I it’s

not 5050 sharing. And there are other tricky issues where one party can become quite intractable and and sometimes it's useful to be able to throw something up to the Judge and say, “please make a decision on this point, because otherwise somebody is just going to have to give in”. 

I am avoiding saying something about that…I am going to say it anyway.  

Yeah say it, go.

Some may say that that is lazy decision making and lazy problem solving.  But having said that I have been in enough collaborative processes and mediation and court cases to know what you are speaking of here and the problems that we face and trying to find cost effective and time effective solutions is really important.  What I…some of those really tricky points we often use our neutral expert, so say for example if a couple are considering a problem that might look like this:  the problem they are considering is how can we avoid a situation where the children are moving from one home which is akin to the princes’ palace to another home with the other parent which is akin to a pauper’s home.  Which is really an intraspace redefining of sectin 15 and spousal maintenance.  If that is the problem they are looking at, one thing I am doing at the moment in a collaborative case I have got is the lawyer and I are sitting down together and we are saying ok what can we agree on on this, from a legal analysis.  And what can we agree an agree might look like on this?

And we have pulled out Arnold J’s lovely formula and we are crunching some numbers and with the help of the financial neutral we are able to do that.  I am aware of other cases where the parties are jointly engage da financial to come on and actually do that calculation for them and to say yes this is what the number or the range is looking like.  um I am also, I have been having discussions with some colleagues in Australia at the moment about those stuck moments and  whether or not there is that scope to go ok we are stuck on this issue, we have got one issue that is a road block and maybe taking a really, taking that to arbitration or litigation and seeing if that is a   possibility of course that flies completely in the face of what we are agreeing to in the collaborative process that you are not going to court.

but you can see where that would really work, especially like an arbitration.

Right. So family law arbitration, you choose your judge effectively you both agree on and then what you're saying is where you know with we're like two kids scrapping in the playground, by binding ourselves to this process, we've effectively agreed not to go to the teacher. Right. But sometimes to really balance things up, you've got to go to the teacher.

And I guess that's where I feel like is there to plug in that is missing in collaborative law that we could. Or is it something that you use? 

I haven’t in my experience found it to be necessary.  You know I have just found that the parties value the principles and the process and what it is intending to do.  And there is a reason they are in that process.  They don’t want to go to Court.  A number of my clients have done that with previous separations.  They don’t want to ride that rodeo again.  And that’s why they are drawn to this process and so I think there is enough other ways we can try and enough otherways to problem solve and be creative around that that avoid us having to do that.  and again I think a really key one is perhaps having an early expert determination, having a financial neutral come in and do some numbers for us.

Far more cost effective that litigation.

Because I'm thinking of a situation where you've got one partner that considers that they supported the other partner through the course of their relationship, and then that's the ultimate - a sting in the tail that then that partner that they've supported all their life, then suggests that they get a bigger share of the asset.  That is just absolutely blows someone's mind and how can that how can that opinion be changed really? That's just like a complete attitude that how do you change that? 

There’s a whole lot of, I mean we see this every day in our work and some of the attitudinal issues can be around viewing my income as my income.  You chose to stay at home, you chose to go and have ladies’ lunches and not work when you could have gone to work.  All those sorts of things.  Although you know the courts take a very different perspective on.

I guess there are two ways that we approach this in collaborative process, the first way is in our screening and our assessment.  It may be that if you have a client who is steadfastly demonstrates…we have some nice questions that we can ask in that assessment, and if you have a client who is steadfastly holding on to that I would be asking some very curious questions about what is underlying that.  But it may be that that process is just not for them.  Equally though it is a process which does allow people to even if they aren’t recognising the other person’s contribution to the relationship or to the family, that they can recognise interests that they have pertaining to their children and recognising that for their children’s wellbeing financially the other parent needs to be doing ok.  You know to be doing well.

It's, it's quite a big ask like when I think of my own personal mediation, that was definitely the view that that my ex took was, was that exact scenario. And it took the mediator really to say, that's not the position, you know what I mean? This is what the actual law says.

And I guess I've got a few like I've, I've got a, a bunch actually of, of clients who are the main, who were the main breadwinner who are, you know, they are ready to acknowledge that. OK, yep, I get that concept that our roles in the family have left us with a different earning capacity now and that's going to have an impact on not only my ex but my children.

Right. And there are lots of good people who are trying to work through those and make a fair adjustment. And on the other side, there are some people who were at home who have, you know, I'm not sure whether it's - yeah, have pretty high expectations about what they're going to get. And I guess I'm just reading between the lines.

You're the people who come to collaborative law. They're generally family lawyers who are really experienced in relationship property law and family law. So rather than having a lawyer who does a bit of everything, who happens to be handling a relationship, property matter, you've got other lawyers who are going to be saying, well, their lawyer’s, right - it's not 50:50 in these circumstances.

So I guess maybe do you sort of work together to help them say what a court because that's really helpful, because oftentimes you can be saying to the other side, most I know it's 80:20 and you're like, come on, it's not. 

That was what I was about to say when I was hearing your story Shelley from your mediation.  Sometimes the most valuable role we have as professionals is creating doubt.  Sometimes people come very resolute with what they think is happening or very resolute because you know the lulu lemon lawyers, you know the other parents outside the school gates in their active wear are telling them you should get this you should get that they come very resolute so our role is sometimes to say you know to question that and it can be your own lawyer saying actually you just heard what my colleague here has said and I have to agree with them.  That does create doubt for them and they start to go I am less certain maybe we do need to look at things again.

It's not an uncommon thing to have a client come to you and say I hope, I hope my ex gets a terrible lawyer and you know, not, not as good a lawyer as you and, and we always say no! You hope that your lawyer gets your, your ex gets a damn good lawyer because they will be telling them same things I'm telling you.

And that's how we get, that's how we jump to an outcome.

And that is one of the beauties of collaborative process is you get to have very trusting and great functioning relationships with your colleagues and so you come into these meetings and it is really amazing team work that takes place.  And as I said I have got a colleague and I at the moment who are going to sit down and we are going to say what can we as a unified front tell the parties

Okay. Next question. Does choosing one expert like an accountant, take something away from a process a day?

Well, for example, by removing the possibilities that can be explored when you have two experts, two accountants duelling over differing opinions. 

Yeah, I mean, obviously, the more brains in the mix, I think the more potential you have for options coming. But I guess my answer probably rests on that word duelling. I'm not sure how beneficial that ultimately is.

Certainly having the one for example, the financial aid being the one financial neutral helps contain costs. And I just find that neutral is so important to the functioning of the process because they're able to build such trusted and positive relationships with both parties. And when we're thinking about the financial neutral, that role is just so much more expansive than we view it through a litigation lens.

So, you know, think beyond forensic work or share valuations or Section 15 calculations in collaborative process, the financial plays a really important educative role. So that helps to ensure that the party and there is usually one who has lesser proficiency or lesser confidence around the numbers, understands those and feels really confident with them, which makes for far easier work when it comes to getting agreements in place.

So then do you argue, not argue, so do the the lawyers then contribute by being able to discuss the merits of the various inputs. 

Yes. Absolutely.  So for example, like a section 15. 

Yeah. Okay. So is that financial expert also educated in collaborative practice.  Yes. So they have gone through similar training. All of the professionals are trained and they train together.

which is great because it starts to help forge those important relationships and working relationships together. And the other thing I was going to say is that the financial also does is they really help not through some of those interim financial issues and the budgets and things like that. And, you know, without dwelling too much on war stories, I'll just never forget one of my earliest collaborative cases with a really great collaborative lawyer in Auckland, Karen Money and her and I, spending a meeting with both parties, getting agreement on the budget.

And at the end we just said never again. Having one financial is just the way to go on those things. So we find that just is really efficient and cost effective using using that one professional to be able to go through the bank statements, go through and do the analysis and help the parties go about their interim finances and their budgets.

Great. Okay. And how do you respond to concerns that having this is a quote from an article I found “a system that focuses on emotions and relationship preservation almost to the exclusion of substantive concerns is likely to do little to alleviate the post-divorce suffering of women and dependent children.”

I think I know the article you referred to, and I think I know the research that comes out of that.

Yeah, it's just we were talking about that we would talking about earlier the cognitive bias called bounded rationality, which I had never heard about before, but which talks about how poor, how bad humans are predicting the likelihood of outcomes. So we might. Yeah. How does this system ensure that we're not our own worst enemies in what we agree to?

Yeah, and I think in any process, whether it's mediation or litigation or collaborative, all the professionals need to be really mindful of the power imbalances and the biases that are at play, because irrespective of the process, that will be happening, we're all human. And so in collaborative process, our professionals in New Zealand, one of the things we're trained to do is understand people's conflict styles and help our clients identify these, which is really, really helpful if you start to see one party capitulating.

So really understanding your clients conflict style, the other parties conflict style, how they respond when they're in conflict and and what's in the background, you know, how they have resolved things in the past or not resolve things at the past. What's the usual template when they're in these situations? Understanding that just really helps attune you to what's happening in the room as well and helps you name if you see people falling into those those those traps, shall we say, or those previous templates.

The professional team also debriefs and has preparatory discussions and these are usually very frank and very constructive. We name what we're seeing in the room and the dynamic between the parties, and then we're working to really proactively find ways to mitigate that. 

So you can have some of those robust conversations without the aggro in the room.

Completely, completely.

Because at the end of the day, we're all there for the same purpose to try and help this family reach agreement and do so in a way that's constructive. And so when you focus in on that as your common purpose, it means you can have these discussions which are quite robust and remembering as well, the parties have their own lawyer there and we’re they're at to, you know, to be their advocates, to be their voice, to notice behaviors and to name them and address them in a constructive manner, and also to be coaching our clients, you know, and asking them questions and coaching them around approaches they can take that may be more

Conducive to reaching agreement and overcoming some of those unhelpful behaviors. So I can't help but think that could be useful process to take maybe five years earlier.  Because half the time…I think that would be actually a really useful exercise. 

Some of the research speaks to that. Some of the research actually speaks to coming out, actually and, you know, that's one of the great opportunities. It doesn't happen for everyone, but one of the great opportunities the process offers is that to redefine how you relate to one another when problems arise. 

So do you meet separately with your client? Because I know some some practitioners don't do that. They only meet in the room, but you talk with the other lawyers and then you you meet separately with your client.

I haven’t come across lawyers who would never meet with their client individually. You always meet with your client individually.

In some of the articles… 

You meet them individually at the outset and really scoping what's important to them and what process is going to be appropriate and priming them for that process. And then throughout the process, you're meeting with them, you're doing debriefs with your client individually after every meeting.

Right? And and I've just, you know, this week I’ve been busy meeting with some clients who are in the collaborative process to really set them up for option generation and considering options that are on the table and helping them helping them start to focus in on what what the possibilities may be. Yeah, are you on one side and that one or are you, you know, when I'm in a collaborative process, I'm acting for one party.

This is sort of back to the you can't use the same lawyer, which I know is a linchpin of it. So a lawyer can recommend that a party walks away in a mediation or if it isn't working for them. But in collaborative law, the cost of that is quite massive, 

And I know there's an ongoing cost if you go to court, but the cost of that is quite massive because you've got to instruct a new lawyer and bring them up to speed. And yeah, I'm I'm just interested in. Do you think it's it's worth it despite that. 

…to have it as an underpinning principle. 

I think as you devote time and energy and money to any process, you naturally develop a bias and escalation commitment to that process, no matter the case at hand.

I don't it's a really good question. I don't think that the costs of having to engage a new lawyer would change my support of the disqualification clause. I just think that the openness and the transparency that that helps engender in the process outweighs you know, the possible costs of then moving to a new lawyer and having to litigate things in that it helps get agreement to avoid having to go to a new lawyer and litigation.

Yeah, well, exactly. I guess. Yeah, it does create some pressure there. Okay. You've answered that one. 

I and the other thing is, I mean, it's very few cases that end up leaving the process and having to go to court. Sometimes if they leave the process, they will still work within other non-litigious processes, other consensual processes to reach agreement.

Or if they did have to go to court, they will have narrowed the issues right down and have collated a lot of information that is then useful for court. So yeah, I think so. 

These are without these aren't without prejudice negotiations?

They are. Okay. So when you go to court then you can't you couldn't really hold those hold the party to those things that they've agreed?

You can't no, you can't do that and you can't does it just as in mediation, you can't say she did this, she did that in the collaborative process. But one of the things you often have done is you may well have said, well, actually the only two issues we need to go to court on are these two. You know, the rest we're fine with or 

As long as they stick to what say, yeah, 

We're happy with this valuation information.

That valuation of information can be used. So you're not having to reinvent the wheel entirely. You don't have to start at the beginning. Okay. All right.

What creative ways can you use the process? Can you give us an example of where that worked well?

One of the beauties of the process is it's really adaptable. Years ago, if you went to a collaborative conference, you would hear a lot about the gold standard. And this is the way the process should be done.

That was a little problematic for me because here in New Zealand we, you know, we have different cultural context and also we had different resources available to us. What I was really thrilled to say at my first in-person conference after the pandemic was a shift in that and people starting to be delivering papers on the adaptability of the process and adapting it to meet cultural need, adapting it to meet financial need, you know, doing a really streamlined process.

So there's all sorts of amazing things that we can now build on and adapt the process for. As I said earlier, there's some really exciting things happening in Australia with the use of child development specialists and it's, you know, it's a very creative process. Yes. And it can be used in a whole range of different disputes as well.

There are other lawyers using it for trust in estate disputes or issues around closely held companies and shareholder disputes, employment law and other aspects of civil law, particularly in the US it's being used for us. So lots of different applications that it can be used for.

 If an agreement is reached, what then? And what if an agreement can't be reached?

There's a next process isn't there? 

Yeah. So if you're talking about a property or a parenting dispute, then the agreements are formalized in exactly the same way as they are in any other process where agreement’s reached, you know, you have a relationship property agreement both parties have to have had their independent Advice and have it certified, we can seek consent orders from the court because it's non you know, it's a non contested application.

So we can seek consent orders if they're needed to give effect to the relationship property agreement or to get consent parenting orders. Yeah. And so when agreements reached we will often come together for a final meeting and everyone signs the agreements together and it's nice to give the parties an opportunity to reflect on their experience and to make any remarks they may wish to in order to to close the process.

And those can be really quite poignant meetings. But equally, if agreement wasn't reached, and I'm only really speculating here as to what they'd been doing, because I've been fortunate to be involved in processes where agreement is reached. I think it's just equally as important to give the parties opportunities to reflect on the experience, say whatever they need to say to try and close the process, but also to give them affirmation as to the gains they did make, because there will always be some gains made when you're bringing people together and having these discussion, even if it's just developing a deeper understanding of each other's perspectives and to step through with them what the next steps will be. There is a 30 day cooling off period, so you might say, and I've had a case recently, this has happened where one party says I'm terminating it and walking away. There's a 30 day cooling off, which means no proceedings can be embarked upon unless there's a really urgent safety issue within 30 days. And that just allows a chance for cooler heads to come to the fore.

And as it happens, that process is probably back on track again. 

Okay. And yeah, just something you mentioned there. When you're talking about you can get a consent order and two, to resolve something. Can you have started proceedings and then decide we're going to step away and see if we can go to collaborative law. So could you have them sort of running in the background in that situation?

Really good question. There is I haven't seen it done here in New Zealand, but there's no reason why it can't be. I know in the US and other parts of the world that certainly happens and in fact courts and different legislatures have recognized collaborative process and adapted legislation or  procedure to enable that to happen. And I guess I’d make a comment with that is that it's probably a bit harder the work’s harder because by firing off proceedings, you're instantly sort of positioning people they've had advice that's very rights based and very entitlements based.

And so you're then sort of trying to bridge a bridge, probably a quite a gap between them. Yeah, but it's not ideal, but I know it is happening overseas. Yeah. Okay, cool to do the last one.

So have the Ministry of Justice done, done a review of how the collaborative practice is working in New Zealand. 

No, I mean I think we're relatively still an out and some say we sort of at the toddler stage at this point even that's been around a while.

It's been a slow burn. I it's it's kind of problematic because on the one hand you kind of want to have a reasonable number of participants engaged in the process to get reasonable data, you know, sample size of data to make any research or any review meaningful. So it becomes a bit circular. A bit chicken and egg, sometimes - you're not going to get more practitioners or people operating in the space without that data.

I say it’d make a great topic for a PhD. So yeah. But it is happening regularly and it's happening successfully for the most part doesn't mean that it's all for the parties and not experiencing fairy Dust and unicorns the whole way through. It's, it's tough coming to any process, both the really raw emotion and conflict and conflict that often is carried with a family that is going through a separation.

And and you know, we all have to be attuned to trauma informed work when we're working with clients, just as we do in any other model. But I have to say, it gives us all a way to work that's really aligned with values of cooperation, teamwork and serving clients in a holistic way. And as I say, really, it makes for a great day at the office.

Yeah, yeah, cool. And we can if somebody wanted to get into it, we could a lawyer or another professional train. Where can we how can we sign up? There's trainings that happen all around the world, and so the ICP calendar is a really great start on their website, but here in New Zealand, if you want to do a training here, then we've got one coming up.

I'm just firming up the dates for that. It's likely to be July or August and so you can just contact me directly or contact Collaborative Resolution New Zealand. 

Yeah. awesome. So now we come to the quickfire question. 

It’s meant to be 10 seconds, often it takes more than 10 seconds to write the question. Yeah 10 questions, 10 seconds each to answer them.

Let's kick off with how many collaborative law practitioners are there in New Zealand.?

Good question. I think I have lost count because collaborative resolution holds most of that data. I'd say my base case would be about 100 to 120. Yeah. Okay. Okay. If you hadn't been a lawyer, what what would you have been? Probably a teacher. Okay.

What is the difference between an officially collaborative lawyer and a lawyer who collaborates?

An officially collaborative law is one who's undertaken the training and the skills work that is needed to practice in this process. 

What is the best bit about collaborative? I always pause because my question is, is collaborative law and I have to…

I appreciate that. 

What is the best bit about collaborative practice? 

The best bit for me it's seeing clients come up with really tailored, bespoke solutions that suit them and the family. They might not suit the next family that comes along, but they suit the family. And those are often solutions that are very different to what they make it. If they went down a more traditional negotiation route.

What's the quickest collaborative practice outcome you've been involved in?

I had one done in two meetings that was quite unique. We had some time pressures because of parties at one party, lived overseas and was traveling in and out of the country. But Karen and I and I managed to get them not attend the meetings. Yeah. okay. 

So how many meetings did the parties normally get? And is there a point at which you just call out and say, enough is enough?

Yeah, everyone's hung up quite a lot on the number of meetings that it might take. And I come back to and I understand that because we want efficiency, we want things to be effective and we want to keep costs and the number of meetings really does depend on the parties. As I said, I had one couple, it sorted it out in two meetings, another one in three, but they’re quite different, and they’re involved in a very different space to perhaps the couple are needed for five or six meetings, some will be resolved in a couple of months, others will take much longer because there are other things in their lives that are happening for them that they say, I just need to press pause on this. And sometimes I mean, I say to clients, progress.

Pausing is sometimes progress if it means either or both of you are able to then come to a meeting and are able to participate really effectively. We're almost there. I think we will cut out the best question ever …it would be tempting fate.

My best question ever was do lawyers make good partners? Do you mean romantic partners?  I love it…

What does the process cost? 

Well, again, that's how long a piece of string. It really does depend on the parties. The complexity of the matter. You know, we're talking about just working out how to divide up the home and a mortgage and some KiwiSaver…

Or are we talking about complex trusts 

You're paying, you to pay your lawyer? That's that's where the cost comes from?

The cost comes from the expert, the professional fees. But one of the lovely points of difference is often at the first meeting, the first question that the parties are considering and resolving is how are they going to meet the costs?

You know, it's not necessary really going to be that each is left having to carry the can of of their own lawyer's costs, that they may have a common kitty or find other ways in which they're going to do that. 

Yeah. So I sort of asked this before. But do you train accountants and as collaborative practitioners or do they get confused by having to deal with people?

(A little lawyer - accountant joke there) 

We love accountants!

Yes, they do as I say, really. They do train alongside us as lawyers. And I have to say I really value their input and often because they’re the neutral, they are just at a critical pace and in the process working successfully.

So is there a professional body that deals with complaints, and if not, does the Law Society get collaborative law?

No, we don't. We tend…CRANZ isnt a place to go to with a complaint as such. Yes, we all have the guidelines and standards that we and ethics that we have to abide by, which accord with the IACP guidelines and standards and ethics. But at the end of the day, each professional has their own regulatory body to which complaints should be made.

So in my case, the Law Society within the Law Society understands collaborative practice. That's something I probably can't comment on. I think like everyone, they're probably getting to grips with this as is ains more and more momentum.

Who do you think shouldn't engage a collaborative law process?

I think anyone who where it's going to be unsafe and that’s physically or psychologically in all realms, if it's really going to be unsafe and my radar...I've done years of family violence work. My radar is pretty quick to stop pinging in my head if it's likely to be happening. 

You'll forgive this question, Stuart. We've created the rules around collaborative law because traditional law and court had left and burnt out. Is there an argument to say collaborative law actually benefits lawyers more than their clients?

I think it doesn't benefit them necessarily more. I think it benefits both in different ways. Yeah, but certainly lawyers speak to having high levels of professional satisfaction and fulfillment from this work.

There are a lot of studies that showed that women do worse in mediations. How does collaborative law improve those statistics? If it does, does it?

It's interesting the research that I've reviewed shows in fact, there was some research out of Canada of lawyers who essentially were saying they felt that their clients were getting really good just outcomes out of collaborative. And when you looked at the response rate for lawyers who were doing litigation and arbitration, it was really low. So that was a really interesting to me that the lawyers themselves were identifying this, this difference.

Yeah, yeah, I guess it was mediation. So I was, I was thinking with those differences, but yeah, no, that's a good answer. 

Last question. What links these statements and send out as soon as you know the answer or think you know the answer. 

·       No pressure. Yeah. 

·       Don't blame me. 

·       You need to calm down. 

·       Look what you made me do.

·       I bet you think about me. 

·       I forgot that you existed. 

You'll get it soon. 

·       I knew you were trouble. 

·       Is it over now? 

·       We are never, ever getting back together. 

My goodness! It sounds like…it's not to be said in collaborative process. 

You obviously don't have a teenage girl. I'm sorry to gender…

Those are all the titles of songs by the lovely Taylor Swift. And there's so many more appropriate ones that I had. 

My son is so not a Swifty. I am quite proud I didn’t get that.

We try to do that. We try to one Taylor Swift reference into it every episode. 

Thank you so much Selena. That has been - not a whistle stop tour.

It's been a good in depth discussion about collaborative practice and an exploration of what makes it so good and and a good challenge to….what we litigators think about how collaborative we are. Could we be more collaborative? Could we be Collaborative Lawyers with a capital C and a capital L?

So this has been Divorce Cafe. Thank you so much to our special guest, Selena Jane Trigg of Lighthouse Legal, which has venues in Christchurch, Auckland and Queenstown.

Did I get that right? Yeah. Thanks so much. Has been a really fascinating discussion and about collaborative process and we look forward to joining you, no we look forward to you joining us next time.

She’s Shelley Funnell, I’m Taina Henderson. You can always send us your questions to divorcecafe@hendersonreeves.co.nz and it might be an idea for future episode.