Zinta Harris and Anne-Marie Rice are lawyers on a mission: to champion a more collaborative, less combative approach to law in general and in the family law wills and estates spheres in particular. Both are formidable figures in the law – Anne-Marie, an accredited family law specialist, mediator, arbitrator, and family dispute resolution practitioner, was named Leneen Forde AC Woman Lawyer of the Year (2018), while Zinta, Principal of Harris Law, is an accredited specialist in business law and succession law, a mediator and collaborative lawyer.
Insights spoke to the lawyers about what compelled them to pursue collaborative legal practice, why it works, and how they are working with the College of Law to develop training in this area.
Preventing bitter family battles over inheritance
“Over the next two decades, we will see the biggest wealth transfer from generation to generation in Australian history,” said Zinta. “With over half of all marriages ending in divorce, blended families are on the rise. When you consider that estate disputes have increased by 50% over the last decade, and that over 70% of these disputes are made in the context of blended families, the potential for devastating breakdowns in family units across Australia is enormous.”
Bitter family battles over an estate can fracture families and diminish inheritances. Zinta felt this occurs because the ‘traditional’ court process forces families down a single, often costly and adversarial, path.
“Taking an early-intervention collaborative approach in the estates disputes context gives families at their darkest hour the very best chance of coming to their own resolution without going to court. This means family relationships are not destroyed and inheritances are preserved. It also means a better, non-confrontational way for lawyers to practise – in a highly rewarding way.”
Lawyers ought to be problem-solvers, not gladiators
“All legal disputes, whatever the technical issues at play, are ultimately conflicts between human beings,” said Anne-Marie. “Human beings who asked to make important and binding decisions are generally concerned about much more than just the legal technicalities.”
According to Anne-Marie, a collaborative approach to legal dispute resolution – which she terms ‘positive problem-solving’ – seeks to resolve issues without first making them bigger. This approach takes account of and works to contain the impact of legal conflict on clients.
“Our client’s whole of life experience matters when it comes to finding legal clarity,” said Anne-Marie. “As good legal problem solvers, our responsibility is to ultimately make ourselves redundant: to return them to the autonomy of their lives as quickly and cost effectively as possible and with as little impact as possible on the things that matter beyond the legal sphere – financial and personal resources, security, and self-esteem. Lawyers ought to strive to be problem solvers, not gladiators. The more collaborative the approach, the greater the creativity and the greater the solution resonates with the client”.
Disciplined, early-stage team mediation
Compared to the current court process, a collaborative approach involves early-stage team mediation.
“Unlike a traditional late-stage, final-ditch-effort mediation run under pressure on one very long day – where horse-trading on figures to avoid court costs is the name of the game - the Collaborative process is an early-stage, holistic, team mediation run over a series of meetings. Each issue in dispute is discussed in a calm, measured and informed way, with a view to reaching a settlement instead of going to court,” said Zinta.
Meetings last no longer than two to three hours and are held between the family members, the executors, lawyers and any grief counsellors, financial planners or communications coaches who may assist in reaching an amicable agreement.
“In this ‘team facilitation’ environment the parties are supported to make decisions based on what is most important to them – because let’s face it – the family wars that can erupt in estate matters are usually over far more than the monetary value of assets! Lawyers are not in “opposition” but rather can work with each other to help the parties reach a creative, practical solution – rather than argue about imposing a legal solution,” said Zinta.
As Zinta pointed out, this is preferable because the law is often based on court precedents formed by judges forced to determine the most bitter disputes between dysfunctional, fractured families.
Success requires discipline. All parties involved must remain committed to settlement.
“A collaborative approach puts decision making responsibility in the hands of the parties, not the lawyers or a judge,” said Anne-Marie. In the family law context “it allows for a deeply nuanced, bespoke outcome that recognises that so much more than the law is involved in the decision-making process. It enables and encourages parties to maintain respect for each rather than to have the other morph into an impersonal and opposing “legal position”. The confidential nature of negotiations means that all options can be explored fully and creatively where appropriate.”
The moment litigation is threatened, the collaborative process must cease.
“This means that the family and their collaborative lawyers will be far more likely to invest in the collaborative process to reach an out of court settlement, rather than simply participating in a court-required mediation without genuinely seeking to reach settlement,” said Zinta.
Towards more compassionate lawyering
For Anne-Marie and Zinta, the results speak for themselves.
Having spent over twenty years working in contested estates, Zinta admitted she has witnessed “truly awful” situations which have left families financially and emotionally devastated.
“Most satisfying is the chance to help grieving families navigate their darkest valley in a compassionate way,” said Zinta. “Working with other professionals, I have had the privilege of witnessing ‘goosebump’ moments where families, facilitated in positive communication, can re-build relationships even in the midst of resolving conflict.”
“Most lawyers feel as though they work hard to impose order on the chaos,” said Anne-Marie. “As a practitioner who adopts a positive approach to problem solving, who seeks to make the issues manageable, not bigger or uglier or more technical than they already are, I derive a very distinct and satisfying sense of professional purposet.
“In this work, I genuinely leave clients in a calmer, clearer, less anxious state of mind. I have helped them find solutions to conflict that are meaningful to them and consistent with their world view. The outcomes for parties from the Collaborative Process are, of course, legally binding and sustainable, but they are also, importantly, grounded in the individual’s sense of what closure and the future looks like, not a strictly legal paradigm. This means that clients who are often grieving, angry, scared and confused reach agreements that they understand, accept and which are sustainable long after the legal process is forgotten. This is enormously rewarding particularly as so many people end the litigation process financially and psychologically bankrupt.”
However, as Zinta cautioned, collaborative practice may not work in every matter. To succeed, clients must be committed to more than just a legal outcome – they may aim to maintain family relationships or avoid wasting inheritance funds on litigation. It also requires lawyers and other professionals involved to be ready, willing and able to act as facilitators.
“You need to allow the family to work through the emotional and financial drivers that cause family conflict, rather than focusing on securing a client a legal outcome detached from the deeper issues that often lie beneath,” Zinta said.
“The collaborative process is not an easy one, but it is one that holds the promise of restoring a relationship to reach a holistic settlement, giving families the freedom to get on with their lives.”
College of Law’s support signals importance of collaborative legal practice for wills and estates
Both lawyers are thrilled by the support from the College of Law, which sends a clear signal about the importance of collaborative practice.
“The moment we floated the idea of running training specific to wills and estates, the College jumped at the chance to support us,” enthused Zinta. Discussions are now underway for a specific mediation training course for wills and estates involving multi-party mediations.
“Having trained with the College as a mediator I am truly excited by this additional offering, since the traditional training in mediation does not address the multi-party dynamics often present in estate matters,” said Zinta.
“The College’s role in encouraging and fostering a positive problem solving, non-gladiatorial mindset will undoubtedly help to change the face of legal practice,” said Anne-Marie. “Practising in this way will reduce the stress levels among the profession. It will mean so many more lawyers, particularly women, who are intuitively attracted to this way of thinking and practising, feel able to create, and remain in, sustainable careers and vocations. That in turn, will lead to further innovation in our rapidly changing profession. But more than that, the College’s support of Collaborative Practice sends a message to both lawyers and the public that this is an important and meaningful way to practise.”
Find out more about the College’s postgraduate specialisation programs in Wills & Estates and Dispute Resolution.