The Essential Frequently-asked Questions About Collaborative Law
What Is Collaborative Practice?
Collaborative Divorce. Collaborative Law. Collaborative Practice. You may see the process referred to by any of these names. Here, let’s call it Collaborative Practice to encompass both collaborative civil and collaborative divorce practice. Collaborative practice is a process of dispute resolution in which parties represented by independent, collaboratively-trained counsel, meet periodically to negotiate toward agreement on all issues. Collaborative practice is voluntary, consensual, and non-adversarial. The parties employ two collaborative (limited scope) lawyers, one or two coaches (usually only in domestic relations), one financial professional, and if appropriate in domestic relations cases, one neutral child specialist.
These negotiations occur outside of court and usually before any court case has been filed. Collaborative family practice is a team approach, often involving mental health professionals (“divorce coaches” and “child specialists”), and financial advisors. At the heart of Collaborative Practice is the “four-way agreement.” The four-way agreement is a contractual document signed by the parties and their counsel. In this document, the parties and their counsel all agree that the purpose of their meetings is resolution. Furthermore, they agree that all ideas, documents and statements made during the collaborative process are privileged, and that if a resolution cannot be reached, the attorneys must withdraw from further representation, and the parties will seek new litigation counsel.
How Does Collaborative Practice Work?
The parties sign a collaborative participation agreement (a “four-way” or multi-party agreement) describing the nature and scope of the matter. Each party must be represented by a lawyer who agrees, in the four-way agreement, that the lawyer will withdraw from the representation if the parties are unable to reach a resolution and one or both of them decides to pursue the matter in court. The parties agree to, and must, voluntarily disclose all information relevant and material to the dispute. The parties agree to use good faith efforts in their negotiations to reach a mutually acceptable resolution. The parties may engage mental health and financial professionals whose engagement also terminates one or both of them decides to pursue the matter in court. The parties may jointly (or in some cases unilaterally) engage other experts as needed.
The process unfolds through a series of planned meetings between the parties, along with a varying configuration of the professional team members, during which specific agenda items are addressed, all with the goal of leading the parties to reach a well-informed, mutually acceptable compromise.
Is Collaborative Practice Cheaper and Faster Than Traditional Litigation?
Collaborative Practice is almost never more expensive and usually is significantly less expensive than litigation. The process is also usually considerably faster to a result than litigation. The attorneys need not bill for wasted time spent waiting on a docket call or playing telephone tag or endless email chains. Moreover, the lawyers will not be filing self-serving motions, boilerplate discovery requests (or any other discovery requests), or writing self-serving or incendiary letters. The clients, guided by counsel, determine the frequency and timing of meetings. All these differences lead to efficiencies that ultimately benefit the clients in a lower overall cost for getting the matter to resolution
Isn’t Collaborative Law Just Like Mediation?
In a word, No.
Unlike mediation, there is no neutral third party in Collaborative Practice. Parties in mediation often feel they give up a substantial amount of power to the mediator, but in Collaborative Practice, the parties are expected to make a substantial contribution to the process themselves. In addition, in mediation, the mediator, particularly in the type of mediation called evaluative mediation, may suggest resolutions to the parties. In Collaborative Practice, the resolution achieved in belongs one-hundred per cent, and is created one-hundred per cent, by the parties with the guidance of their collaborative professionals.
Mediators are neutral and cannot give legal advice. The mediator represents neither party, and the parties in mediation are often represented by independent counsel who may already be or may become litigation counsel. Litigation counsel do not always have an incentive to assist the parties with resolving their dispute.
How Is Collaborative Practice Different From Mediation?
Mediators and lawyers representing parties in mediation often try to resolve a case in one marathon session where the parties eventually reach a compromise when they are hungry, exhausted, and even sleep-deprived. In the collaborative process, clients attend a series of meetings accompanied by counsel, by their coaches, and/or by any other member of the collaborative team. The goal of the collaborative process is to create a written global settlement acceptable to all parties. Additionally, parties in mediation often in practice give up a substantial amount of power to the mediator. In collaborative practice, the parties work, with the assistance of their counsel and mental health and financial professionals, toward their own resolution of their issues. Furthermore, in mediation, usually the lawyers and the mediator drive the settlement discussions. In Collaborative Practice, the parties are expected to make a substantial contribution themselves.
What Is the Advantage of Collaborative Practice Over Mediation?
In early meetings in the collaborative process, clients and their attorneys may spend some time brainstorming options. It is understood by all that these ideas are not “positions”; they are possible routes to resolution. They are proposals for everyone to consider, similar to the proposals the members of a business team may place on the table during a discussion of how to address a problem. This sort of idea-generating would never happen in mediation. When the parties have shared ideas for resolution, they begin to see the benefit not only of resolution but of the fact that the collaborative process makes creative resolutions possible
Do Collaborative Attorneys Advocate for Their Clients?
Yes. A negotiated settlement must be fair and must work for both parties. The role of the collaborative attorney is to help the parties develop a resolution that falls within a reasonable range of settlement options. Collaboratively-trained lawyers are able to advocate for their clients’ positions without resorting to heated, defensive argument and without filing expensive motions and boilerplate discovery for self-serving purposes. Moreover, counsel in collaborative practice advocate for resolutions that do the least harm and the most good for their clients
What Kind of Information Will Be Exchanged?
All documents and information normally exchanged through the discovery process in court are produced voluntarily in collaborative practice. Businesses, accounts, real estate and all other property is valued by neutral appraisers trained in the collaborative model. Valuations may be expressed in “ranges,” allowing parties and their counsel to consider creative solution
Will Every Relevant Fact and Asset Be Disclosed in the Collaborative Process?
The collaborative agreement, the “four-way” agreement, requires disclosure of all relevant facts, communications, and information, including all assets and liabilities. While it might be possible for a dishonest party to conceal information, such a person would probably try to do so whether the matter is in traditional litigation, is being arbitrated, or proceeds through the collaborative process. A dishonest party who signs a settlement agreement, which is a legally binding contract, but fails to disclose relevant facts or misrepresents material facts may face legal consequences later
Most Cases Settle. So Why Is Collaborative Practice Better?
Collaborative Practice is not always better. Some matters have to be litigated. Class actions and shareholders’ derivative cases, for example, because of their public nature, are not candidates for the collaborative process. While disputes between strangers engendered by chance encounters, such as automobile accidents, can be resolved through the collaborative process, one of the major advantages, preservation of a relationship, is not present in such cases, making the collaborative process less attractive.
In addition, many if not most, conventional cases settle at the threshold of trial, after the parties may spent thousands, or tens of thousands, of dollars on discovery and attorneys’ fees. But at that point, relationships may have been irretrievably broken, and the parties’ agreement may be the worse for the coercive effect of a pending trial. The collaborative process is designed to open possibilities instead of slamming doors, allowing for creative, respectful, solution-oriented discussions and negotiations. The collaborative process is usually faster, less expensive, and less stressful, allowing for the continuation of long-term relationships.
Collaborative Practice had not been invented when Mohandas Gandhi practiced law in 20th-century India. But what he wrote about his law practice in 1957 seems wholly appropriate as a description of Collaborative Practice:
My joy was boundless. I had learnt the true practice of law. I had learnt to find out the better side of human nature and to enter men’s hearts. I realized the true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby-not even money, certainly not my soul.
Who Is Collaborative Practice Best Suited For?
Collaborative Practice should appeal to any parties to any dispute who need or would like to maintain a working relationship after resolving the matter. Examples include but are not limited to:
–Divorcing couples with children and/or grandchildren.
–Families involved in the probate of an estate.
–Developers in disputes with contractors, or contractors in disputes with vital subcontractors.
–Shareholders of a closely-held business who need to preserve the value and growth opportunities of the business
–Employees and employers in statutory employment claims who will or could benefit from a continuing employer-employee relationship.
–Investors and financial advisors who have a specific dispute over an investment recommendation and would like to avoid arbitration, which will inevitably, and often on the advice of counsel, destroy the relationship.
–Broker-dealer firms and investment advisors who realize that investment advisors inevitably move from one firm to another.
The collaborative process is flexible, and collaborative lawyers are by nature creative. Collaborative law offers a new and, in many cases, superior approach, one that every business or individual with a dispute at hand or looming on the horizon should consider
When is Collaborative Law Not Appropriate?
Collaborative Law may not be appropriate in some situations. For example, collaborative law may not be the best approach when:
–The client is unable or unwilling to negotiate in good faith.
–The client is unwilling to share relevant information or documents.
–The client is mentally ill or has a chemical addiction which remains untreated.
–The client is unable or unwilling to identify and articulate his or her own interests.
–Where there is a history of physical or severe emotional abuse.
Where Can I Get More Information On Collaborative Practice?
The Gregory Law Firm, P.C., actively engages in Collaborative Practice. Steven Gregory speaks to groups of lawyers and other professionals and laypersons regularly on Collaborative Practice and can answer any more questions you may have. You may also find more information on the websites of the Global Collaborative Law Council, www.collaborativelaw.us, and the International Academy of Collaborative Professionals, www.collaborativepractice.com. Mr. Gregory is a member of both these professional organizations.