Over the last couple of months, many of us will have retreated to home working. Our initial thoughts that this would be for a short period of time with a rapid return to normal now seem to have been naive. For many of us, we have had to adapt our skills considerably to using online methods of communication with our clients. Given that social distancing may be the norm for some time yet, we thought it would be helpful to send to our members some thoughts regarding the development of online collaborative practice. This is a process not just for pandemic purposes, but also for convenience, as many of us will have learned that work can be done remotely, rather than in person.
Collaboration was set up to bring people together. To do collaboration remotely may seem like an oxymoron. For our members who have conducted collaboration on an online basis they will have experienced some benefits and some downsides to this process. What we have produced here is borne out of the experience of our members. Any further or additional suggestions will be gratefully received. Our tips are as follows:
- The first two way meeting that normally takes place between agents, prior to a first collaborative meeting, is perhaps even more important. In order that not only the issues in the case can be discussed, but that the practical arrangements are fully understood by everyone who is involved in the process. It is important, not only to bear in mind the technical resources (and ability) of the respective lawyers, but also the technical ability and resources of the clients. It may well be that the clients do not have a printer and a Participation Agreement will require to be sent to them in advance of the meeting. In addition, any financial documentation that is going to be referred to, whether in the form of vouching or schedules, should also be distributed well in advance of the meeting, bearing in mind that that may require to be sent by post.
- The conduct of the meeting can be on any forum that is available to all the relevant parties. It would be important to check with the client that they have used the process before and that they are familiar with that, perhaps even doing a practice meeting with your client.
- At the meeting Minutes would be taken as normal. It should be recorded within the Minutes that no parties are recording the meeting so that the only record of the meeting will be the agreed Minutes in the form normally adopted in collaborative practice. The parties will intimate that they are in a space on their own and that no-one else is present in the room with them.
- If online collaboration is to be undertaken, a newly amended Participation Agreement which has been circulated to our members in Scotland would be the appropriate one to use. This includes undertakings on the use of online technology in Participation Agreements and should be the Participation Agreement that parties sign in these circumstances.
- The signing of the Participation Agreement will take place remotely. All parties will sign their own copy of the Participation Agreement, which they will exhibit and it will be recorded within the Minutes that that has been seen by all parties to the collaborative process.
- Thereafter the collaborative process can be conducted as normal.
- It has been the experience of one of our family counsellors that clients can divulge more in an online situation and that should be borne in mind.
Whilst there are options within certain online facilities to have breakout rooms, it is a matter of preference for the parties and the lawyer as to whether they use those facilities or come out of any online meeting and have a separate discussion with their client if they feel they wish to do so before re-joining the meeting. Collaboration is designed to be a flexible and user friendly process, but it is robust enough to be adapted to our new normal.
Shona Templeton, Consensus Collaboration Scotland
